FOURTH SECTION

DECISION

Application s no s . 23243/13 and 23343/13 Tyrone FENECH and Amanda AGIUS against Malta

The European Court of Human Rights (Fourth Section), sitting on 5 January 2016 as a Chamber composed of:

András Sajó , President, Vincent A. De Gaetano , Paulo Pinto de Albuquerque , Krzysztof Wojtyczek , Egidijus Kūris , Iulia Antoanella Motoc , Gabriele Kucsko-Stadlmayer , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above applications lodged on 18 March 2013,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant in the first case, Mr Tyrone Fenech, is a Maltese national, who was born in 1985 and lives in Birgu.

The applicant in the second case, Ms Amanda Agius, is a Maltese national, who was born in 1985 and lives in Fgura.

The applicants were represented before the Court by Dr D. Camilleri, a lawyer practising in Valletta.

The Government were represented by their Agent, Dr P. Grech, Attorney General.

A. The circumstances of the case

The facts of the case may be summarised as follows.

1. Mr Fenech

On 10 February 2004 the first applicant (who was nineteen years old at the time) was arrested and interrogated on suspicion of trafficking ecstasy (a drug which is regulated by the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta). During the interrogation, at which no lawyer was present, he gave a statement admitting to selling about two hundred ecstasy pills and to using ecstasy and cannabis.

On 12 February 2004 he gave another statement on oath before a magistrate, whereby he confirmed the contents of his previous statement and implicated some other individuals. The latter statement was given at the police headquarters shortly after he had been released, but it is unclear whether he was re-arrested and taken to the headquarters for further investigation, or whether he was asked to attend the police headquarters for further questioning by the inquiring magistrate.

2. Ms Agius

On 10 February 2004 the second applicant (who was eighteen years old at the time) was arrested and interrogated on suspicion of trafficking and possession of ecstasy. During the interrogation, at which no lawyer was present, she gave a statement admitting to her involvement in the crime. She declared that she had been using ecstasy for nearly a year, that she smoked cannabis, and that she had helped Mr Fenech to sell about ten ecstasy pills for 5 Maltese liri (MTL) each.

On 12 February 2004 she gave another statement on oath before a magistrate, whereby she confirmed the contents of her previous statement. From the documents provided it is not possible to determine the time of this interrogation or whether the applicant was under arrest.

3. Criminal proceedings

Subsequently the applicants were arraigned in the Court of Magistrates (as a court of criminal judicature) and their above-mentioned statements were exhibited as evidence against them.

On 1 December 2009 during the criminal proceedings, the applicants requested the court to make a referral to the constitutional jurisdictions regarding complaints they had concerning the lack of legal assistance afforded to them during investigation and interrogation. By a decision of 11 June 2009, the court granted the request and referred the case. The applicants alleged a breach of their right to a fair trial (Article 6 of the Convention) on account of the lack of legal assistance. They requested that their statements - both those made to the police and those made to the magistrate - be excluded from the prosecution ’ s evidence.

4. Constitutional redress proceedings in respect of Mr Fenech

By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the first applicant ’ s right to a fair trial, in so far as he had not had access to a lawyer before and during the police interrogation which led to his statement of 10 February 2004. The same applied in respect of his statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police.

It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against him. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. Since it was not clear whether the applicant was under arrest on 12 February 2004, it was therefore for that court to decide that matter.

On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment.

Accepting that the case was not premature, and in the light of the criminal courts ’ referral, it found that the first applicant ’ s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him.

It considered that the right to legal assistance was not a formality which the accused could use as a further means of defence if not respected. The right served to ensure that statements are made freely, with the knowledge of the right to remain silent, without threats and promises, violence or abuse. A breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. There existed no right for accused persons to be found not guilty. The role of the lawyer was to ensure that the statement was taken legitimately and not to give advice as to how to hide the truth or make a limited or selective declaration. The law aimed to establish the truth and to ensure that no false statements are obtained by abuse. Fundamental rights were meant to promote the dignity of the individual, a matter which surely would not be protected by giving rights which distort or hide the truth at the expense of the proper administration of justice. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned.

In the present case the applicant was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law.

For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings.

5. Constitutional redress proceedings in respect of Ms Agius

By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the second applicant ’ s right to a fair trial, in so far as she had not had access to a lawyer before and during the interrogation which led to her incriminating statement being used by the prosecution as a crucial piece of evidence. The same applied in respect of a further statement she made under oath before a magistrate, if made while under arrest (that is, while in police custody), since Strasbourg case-law did not make such a distinction. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against her. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. In particular, it was not clear whether the applicant was under arrest or had already been released on 12 February 2004; it was therefore for that court to decide that matter.

On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, also in the light of the criminal courts ’ referral, it found that the second applicant ’ s right to a fair trial had been breached only in relation to the statement given to the police, but not in respect of the statement given before a magistrate, which could thus be admitted as evidence in the criminal proceedings against her. It reiterated the considerations it had made in the above mentioned judgment in res pect of the first applicant, Mr Fenech.

6. The criminal proceedings

The criminal proceedings against the applicants are still pending before the Court of Magistrates (as a court of criminal judicature), which has suspended the case pending the outcome of the proceedings before this Court.

B. Relevant domestic law

The relevant domestic law concerning the case is to be found in Dimech v. Malta ( no. 34373/13 , §§ 24-25, 2 April 2015).

COMPLAINTS

The applicants complain of a breach of their righ t to a fair trial under Article 6 §§ 1 and 3 (c), particularly on account of the lack of legal assistance afforded to them during the making of a statement before a magistrate. They further complain under Article 13 of the ineffectiveness of the Constitutional Court judgment, in so far as it did not order that the statements be excluded.

THE LAW

A. Joinder of the applications

In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

B. Article 6 § 3 (c) in conjunction with Article 6 § 1

The applicants complained about the lack of legal assistance during the release of their statements before the magistrate at the inquiry stage.

The relevant provisions read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

The Government submitted that the applicants ’ complaint was premature as their criminal proceedings were still pending. It was thus possible that the applicants would not be found guilty in which case they could not be considered victims in terms of the Convention (they referred to Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010) . The Government contended that examining the applicants ’ complaint at this stage would not enable the Court to assess the basis of the applicants ’ “conviction”, which had not yet taken place.

The applicants ’ observations were submitted outside the time-limit set by the Court and no explanation was submitted as to why they had remained outstanding. The President of the relevant Section, thus decided that they should not be included in the case-file for consideration by the Court.

The Court notes that according to its constant case-law the question whether or not court proceedings satisfy the requirements of Article 6 § 1 of the Convention can only be determined by examining the proceedings as a whole, that is, once they have been concluded. However, the Convention organs have also held that it is not impossible that a particular procedural element could be so decisive that the fairness of the proceedings could be determined at an earlier stage (see, inter alia , Papadopoulos v. Greece (dec.), no. 52848/99, 29 November 2001; Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005 and Pace v. Malta (dec.), no. 30651/03, 8 December 2005). At the same time, the Convention organs have also consistently held that such an issue can only be determined by examining the proceedings as a whole, save where an event or particular aspect may have been so significant or important that it amounts to a decisive factor for the overall assessment of the proceedings as a whole – pointing out, however, that even in those cases it is on the basis of the proceedings as a whole that a ruling should be made as to whether there has been a fair hearing of the case (see, inter alia , Mitterrand v. France (dec.) no. 39344/04, 7 November 2006 and more recently, De Villepin v. France (dec.), no. 63249/09, 21 September 2010).

In the present case the criminal proceedings concerning the applicants have not come to an end. Thus, although the constitutional jurisdictions have already decided the matter, the Court considers that it cannot be excluded that, inter alia , the applicants be eventually acquitted or that proceedings be discontinued (compare, Dimech , cited above, § 46).

The Court observes that applications concerning the same subject matter as that at issue in the present case were rejected as premature when the criminal proceedings were still pending (see, Dimech , cited above, § 48, Kesik v. Turkey , (dec.), no. 18376/09, 24 August 2010 and Simons v. Belgium (dec.), no. 71407/10, 28 August 2012 ) and, where the applicant had ultimately been acquitted, the complaint was rejected on the ground that the applicant had no victim status (see Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010).

The Court finds no reason to deem otherwise in the present case. Without prejudice to the applicants ’ possibility of bringing new proceedings before this Court in the event of a conviction by the domestic courts, as matters stand to date, given that the criminal proceedings against the applicants are currently pending before the domestic courts, the Court finds this complaint to be premature.

Consequently, this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.

C. Article 13

The applicants complained about the ineffectiveness of the Constitutional Court judgment, in so far as it did not order that the statements they released to the Magistrate be excluded.

T he Court notes that the arguments made would be of relevance only if the constitutional jurisdictions had found in the applicants ’ favour , also in connection with the statements made before the Magistrate. Moreover, the Court reiterates that the effectiveness of a remed y within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01 , § 98, ECHR 2006 ‑ VII) and the mere fact that an applicant ’ s claim fails is not in itself sufficient to render the remedy ineffective (see Amann v. Switzerland , [GC], no. 27798/95 , §§ 88-89, ECHR 2002-II). In the present case it has not been argued that there were no prospects of success. The Court notes that the Constitutional Court could have found in favour of the applicants and could have ordered that the relevant statements be expunged, given that the criminal proceedings were still pending (see Dimech , cited above, § 84).

It follows that the remedy in question cannot be considered to be ineffective. The complaint must therefore be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 28 January 2016 .

Françoise Elens-Passos András Sajó Registrar President