European Court upholds Dutchman's plea against Malta

A Dutchman's application against Malta in the European Court of Human Rights was yesterday upheld and he was awarded Lm3,140 for moral damages and costs.

Mohamed Kadem filed his case with the European Court following the conclusion of his case in the Maltese courts, on the grounds that there were no means available to him under Maltese law to speedily challenge his arrest and detention with a view to extradition.

Kadem was arrested in Malta in 1998 on the basis of a provisional arrest warrant issued by a duty magistrate in connection with a request for his extradition made by Morocco on the basis of his alleged involvement in international cannabis trafficking.

Kadem was brought before the Magistrates' Court in connection with extradition proceedings and he then alleged that the provisional arrest warrant was unlawful because there were no bilateral extradition arrangements between Malta and Morocco.

Following the dismissal of his suit, Kadem filed a constitutional application before the Civil Court in Malta, claiming there was no legal authority to order his arrest with a view to extradition to Morocco.

This case was still pending when the criminal proceedings for extradition were dismissed by the Magistrates' Court on the grounds that there was no evidence to justify his extradition to Morocco.

When Kadem's case was appointed for hearing, the Civil Court ordered that a lawyer be appointed to represent him.

But, in terms of Maltese law, any lawyer who assumed the responsibility of representing Kadem would be personally responsible to the Maltese government for all costs and expenses incurred in the proceedings.

Kadem never gave a power of attorney to a legal representative in Malta for this claim, nor had he been granted permission to enter Malta following his extradition proceedings.

Kadem's proceedings before the Civil Court had been struck off for he had no representative and he had not entered the country.

He then filed an application to the European Court of Human Rights requesting a remedy.

The European Court, composed of seven judges including a Maltese, Judge Giovanni Bonello, dismissed the submissions made by the Maltese government to the effect that Kadem had had other options to contest the validity of his arrest or detention, for it resulted that there was uncertainty as to whether the remedy of habeas corpus could have been upheld in an extradition case.

The European Court added that the Maltese government had not shown that Kadem could have obtained a review of the lawfulness of his detention by relying on this provision of the law.

The European convention aimed at ensuring a speedy review of the lawfulness of detention and it appeared that had Kadem pursued his constitutional application he would not have been provided with a speedy review of the lawfulness of his detention.

The European Court therefore concluded it was not proven that Kadem had at his disposal, under Maltese law, a remedy for challenging the lawfulness of his detention, and that this constituted a violation of the European convention of human rights.

The court concluded its judgment by awarding Kadem e7,500 (Lm3,140) for moral damages and costs.