Judgment (Merits and Just Satisfaction) of Court (Fifth Section), March 19, 2015 (case CASE OF KOLAKOVIC v. MALTA)

Resolution DateMarch 19, 2015
Issuing OrganizationCourt (Fifth Section)

   FIFTH SECTION      CASE OF KOLAKOVIC v. MALTA (Application no. 76392/12)       JUDGMENT   STRASBOURG 19 March 2015     This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kolakovic v. Malta,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:              Mark Villiger, President,
              Angelika Nußberger,
              Boštjan M. Zupančič,
              Vincent A. De Gaetano,
              André Potocki,
              Helena Jäderblom,
              Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,Having deliberated in private on 17 February 2015,Delivers the following judgment, which was adopted on that date:


  1.  The case originated in an application (no. 76392/12) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Jovica Kolakovic (“the applicant”), on 14 November 2012.

  2.  The applicant, who had been granted legal aid, was represented by Mr A. Peebles, a lawyer practising in Newcastle upon Tyne. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

  3.  The applicant alleged that he had suffered a violation of Article 5 § 3 of the Convention on account of his sixteen-month detention following the granting of bail.

  4.  On 23 September 2013 the complaint was communicated to the Government and the remainder of the application was declared inadmissible.

  5.  The United Kingdom Government, which had been informed of their right, under Article 36 § 1 of the Convention, to intervene in the proceedings, gave no indication that they wished to do so.



  6.  The applicant was born in 1956 and lives in Msida.

    A.  Background to the case

  7.  On 8 September 2009 the applicant was arrested. A search of a hotel room close to where he was apprehended revealed a number of packets of cannabis (weighing approximately 15 kg). The following day he was questioned and made a statement. On 10 September 2009, two days after his arrest, he and some other Maltese and foreign suspects were charged with the possession of cannabis not for their own exclusive use and conspiracy for the purposes of drug trafficking. They were brought before a magistrate (sitting in the Court of Magistrates as a Court of Criminal Inquiry) and remanded in custody.

  8.  On 25 March 2010, following multiple bail requests which were rejected by the relevant courts, the applicant lodged constitutional redress proceedings, complaining ‒ inter alia ‒ that there had been a breach of his rights under Article 5 § 3 of the Convention and requesting his immediate release as per Article 5 § 4.

  9.  By a judgment of 12 August 2010, following a thorough assessment of the factual circumstances and the Court’s relevant case-law, the Civil Court (First Hall) in its constitutional jurisdiction dismissed the applicant’s claims, and thus did not order his release. It pointed out, however, that the decision was without prejudice to any remedies which he would be entitled to request at the proper time and if the need arose.

  10.  The applicant appealed. On 18 January 2011, pending the constitutional appeal proceedings, the applicant was granted bail subject to certain conditions (including a curfew order and reporting to the police twice daily, as well as residing in an apartment rented for that purpose) against a number of guarantees, including a bail bond in the form of a deposit of 50,000 euros (EUR) and a further personal guarantee of EUR 15,000.

  11.  Since the specified amount was not paid, he remained in custody.

  12.  By a judgment of 14 February 2011 the Constitutional Court found a breach of the applicant’s rights under Article 5 § 3 [and § 4] in view of the ongoing passage of time since the first-instance judgment, during which period the applicant’s requests had continued to be repeatedly rejected. Although the court was empowered to order release and alter the bail conditions imposed ‒ noting that by the time of the judgment the applicant had been formally granted bail ‒ it did not deem it appropriate to order release as or take any other action. It awarded the applicant EUR 1,000.

    B.  Further bail decisions

  13.  On 18 February 2011 the applicant asked the investigating court (Court of Magistrates as a Court of Criminal Inquiry) to reduce the amount of the bail deposit.

  14.  By a decision of 22 February 2011 the Court of Magistrates, having heard submissions, reduced the deposit to EUR 40,000 and increased the personal guarantee to EUR 60,000.

  15.  On 29 March 2011, still unable to pay, the applicant asked the court to reduce the deposit even further. He referred to his wife’s testimony to the effect that the applicant and his family did not possess such funds.

  16.  By a decision of 4 May 2011 the Court of Magistrates, having heard the submissions, reduced the deposit to EUR 15,000 and reduced the personal guarantee to EUR 30,000 (allowing the option of a third-party surety for that amount). However, it required that, before any surety could assume the obligation, proof of the surety’s financial capacity to furnish the requested amount be submitted.

  17.  A further request to reduce the amounts was filed by the applicant on 19 July 2011. He reiterated that he did not have the financial means to pay the specified deposit. He stated that he had four dependent children and a wife back in the United Kingdom who barely had enough money to live on and struggled to meet their financial obligations, including paying the children’s school fees and the mortgage. He further submitted that since he had been detained in Malta, the family business had had to be wound up and, to make matters worse, his wife’s medical condition, which prevented her from being gainfully employed, had deteriorated. The family had been living on their meagre savings, of which very little was left at that stage. The amount required for the deposit was, in his view, not reasonable considering his means and financial status. Moreover, he had been in custody for over twenty months and despite the Constitutional Court having found a violation of his rights under Article 5 § 3 in respect of the bail refusals, he had to date not been able to enjoy that right in practice. The applicant’s wife testified to this effect.

  18.  By a decision of the Court of Magistrates of 22 July 2011, after hearing the parties’ submissions and the applicant’s wife’s testimony, the court rejected the request. It noted that, according to the documents presented, the matrimonial home (which was a substantial property, demonstrating they were not an average family) was still owned by the applicant and his wife, although burdened with a substantial mortgage. Moreover, the applicant’s wife had sold off the family shoe business in 2010 “implying the inflow of a substantial amount of money within the family.” In the light of previous decisions, and the fact that the accused had no ties with Malta, the court considered that a bail deposit of EUR 15,000 was commensurate with the charges preferred against him.

  19.  The applicant filed a further request on 26 July 2011, pointing out that his wife had not stated that the family business had been sold but rather that it had closed down since the applicant was in detention and the applicant’s wife was too ill to run the business. She had also emphasized that the financial means at their disposal were limited since the applicant had not been working for the past two years and she was precluded from working due to her illness, meaning that their savings had been used to meet the daily needs of the family and to pay the mortgage. Moreover, although the house seemed to be of a certain value, this had to be seen in the context of the British property market and the fact that putting the house up for sale was not envisaged. The applicant thus asked the court to review his wife’s testimony and the documents produced by her.

  20.  On 12 August 2011 the applicant instituted constitutional redress proceedings (see below).

  21.  Following the first-instance judgment of the constitutional jurisdiction (see below), by a decision of 14 March 2012 the Court of Magistrates ‒ after hearing further submissions ‒ reduced the bail deposit to EUR 7,000 and increased the personal guarantee to EUR 60,000. It drew the applicant’s attention to the other bail conditions previously imposed which were still in effect.

  22.  Following a further request submitted on 23 April 2012, the Court of Magistrates on the same day allowed his request for modification of the bail conditions, reducing the deposit to EUR 5,000 and increasing the personal guarantee to EUR 70,000. There were other changes to some of the original conditions (such as having to report only once a day to the police station). The applicant deposited the sum of EUR 5,000 and was released on the same day.

    C.  The second set of constitutional redress proceedings

  23.  In the meantime, on 12 August 2011 the applicant instituted a new set of constitutional redress proceedings, complaining, inter alia, of a breach of Article 5 § 3 in the light of the high guarantees set by the Court of Magistrates, as a result of which it had not ‒ in practice ‒ been possible for him to be released on bail. The applicant’s wife gave evidence on 20 September 2011. She stated that the shop had closed down as she could not run it due to childcare and health problems, and she explained that she had sold the stock at rock-bottom prices. She described her health problems, substantiating them by means of medical reports. She further testified that the bank had foreclosed due to failure to pay the mortgage on the house, resulting in them losing their family home with all the money from the sale going to the bank. The wife stated...

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