Other issues relating to the right to personal liberty and security

In Malta, there have been various cases when the authorities have unnecessarily and unlawfully kept a person for an unjustified amount of pre-trial detention. This situation, which raised human rights issues under the right to liberty and security of the person, led to various local judgments on the matter.

The proviso to Article 34 (3) (b) of our Constitution speaks of a 48-hour period beyond which a person may not be detained in custody. Beyond 48 hours of pre-trial detention, a detainee must be either released or charged.

This legal requirement mirrors that of most other European states and the ECHR itself. However, in the Republic of Malta vs Attard 1979, the Maltese Court of Criminal Appeal (MCCA) held that "the police have a right to detain a suspect for 48 hours, release him, and as soon as he is set free, even if he walks just around the corner of a police station, re-arrest him".

This legal reasoning was reiterated in other judgments, until, finally, these controversial dicta were reversed in the Constitutional case of Galea and Borg 1981 where Magistrate (today Judge) Filletti, in a landmark decision, held that "release means that he who is released should have the right to enjoy his freedom of movement and should be able to exercise this right no matter how far away from the police station he has gone. The release must be both manifest and effective and must be shown to be so."

Notwithstanding the clarity of this judgment, in the subsequent case of Police vs Spiteri 1984, the MCCA termed a temporary release of 30 minutes as 'effective'.

The maximum time allowed for pre-trial detention time is not specifically mentioned in the ECHR's article on the right to security and liberty of the person. In fact, Article 5 of the ECHR, which is similar to its Maltese counterpart, states in this regard that:

(1) Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court;

b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authorities on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language, which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph (1) (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

The terminology as to what amounts to "promptly" is clearly vague, as a result of which, the European Court of Human Rights (ECtHR) has been asked to clarify the position on various occasions. No amount of time was ever decided to be the maximum.

However, the ECtHR has been clear that "prompt" must mean prompt and that under no circumstances must a detainee be refused his right to question the justifiability of his arrest before a court of law, or to be kept incommunicado.

In fact, four days under such circumstances were declared by the ECtHR to be unconstitutional, whereas six days were declared legal when the detainee was allowed access to a court and was allowed communication with the outside world. The specific time allowed is left to the discretion of the national authorities.

There must not, however, be abuse or a mockery of the judicial system, as this will necessarily lead the ECtHR to find a violation.

Another area of great controversy vis-à-vis this right deals with the institute of bail (il-plegg/il-libertà prov-vizorja).

Bail may be roughly termed as a provisional release (or the concession of provisional liberty) from custody of an accused when criminal proceedings are pending against him/her. This definition, however, leaves a number of questions unanswered.

¤ Is bail a right or is its concession dependent on the discretion of the competent judicial authority?

¤ Does a presumption in favour of bail exist in the criminal justice system?

Though many might be led to think that bail is a human right, it is not so. In the Constitutional application of Lorenzo Zammit 1959, our Constitutional Court held that: "In the cases when this liberty may be granted, such decision is exclusively dependent upon the court's discretion."

Thus, the fundamental human right involved is the right to request bail, more than a right to bail itself. Bail becomes a human right when it is stipulated by law, and thus, being mandatory by law by virtue of Section 575 (4) of the Criminal Code, it must be conceded automatically as a precautionary measure to prevent unnecessary delays in criminal proceedings.

However, the onus probandi (burden of proof) to reject bail lies on the prosecution primarily because the right to liberty constitutes the rule while any derogation from it, be it arrest or detention, which both are illegal prima facie, constitute the exception.

Therefore, in pursuance of the fact that a presumption in favour of bail exists, in this case the rule "he who alleges something must prove it" is not applicable because the burden of proof is automatically shifted onto the prosecution owing to the juridical nature of the right involved.

The late Judge Pettiti of the ECtHR, in his dissenting opinion in the case W v Switzerland 1993, held: "One cannot indeed reverse the burden of proof and require the detainee to prove that he will not abscond, a negative which is virtually impossible to prove. That would be to add a further exception to Article 5, as only imprisonment removes all danger of absconding."

However, a refusal to grant bail, if justified, that is, if sufficient reasons exist and are already clearly stated in the court's judgment, may not be held to be tantamount to a violation of the presumption of innocence of the accused because the determination on whether to grant bail or not is completely separate, autonomous and unrelated in all ways to the decision on the establishment of guilt or innocence of the accused.

If it were to be held so and bail were to be considered a fundamental human right, it would also be possible to argue that the presumption of innocence persists until a res judicata (final, unappealable decision) establishing guilt is reached, as held in the Austria v Italy 1966 Commission's Report, and consequently the end result reached would amount to establishing that a right to bail exists for convicted persons even post trial pending appellate proceedings.

The aim of the institute of bail is, as held in Brogan and Others v UK 1988, to minimise the risk of executive arbitrariness, or rather to ensure that an individual is never deprived of his liberty more than required by a fair, prudent and effective European criminal justice system.

Malta has so far been the respondent state before the ECtHR defending an alleged Article 5 violation in the cases of Thomas Wiffen, TW, Joseph Aquilina, Sabuer Ben Ali and M'hmed Kadem, decided in 1997, 1999, 1999, 2000 and 2001 respectively.

This is a relatively long list when one considers that Malta has hardly been called to respond to an alleged violation before the ECtHR so far. The list is likely to increase since some of our laws require amendment and are verging on the unconstitutional.

For example, Article 27 of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta) could entail this as happened in the case of Sabuer Ben Ali, but it has not yet been amended and the authorities continue to enforce it.

This section provides that anyone arrested and charged under this Ordinance may not be granted bail until either the Court of Criminal Inquiry terminates its inquiry or after 20 days, whichever is the earliest. This has been declared incompatible with the ECHR since it is arbitrary in that it does not allow for the exercise of the right to request bail before the prescribed term ends.

Arguably, this may also be considered to run counter to Article 5 of the ECHR in that the judicial authority is not given the power to examine the reasonableness of the suspicion by virtue of this legal provision.