Communicated on 25 June 2019

THIRD SECTION

Application no. 22246/18 Joseph FEILAZOO against Malta lodged on 7 May 2018

STATEMENT OF FACTS

The applicant, Mr Joseph Feilazoo , is a Nigerian national, who was born in 1975 and at the time of the lodging of the application was detained in the Corradino Correctional Facility, Paola.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 August 2008 the applicant arrived at the airport in Malta.

Without the assistance of a lawyer he was questioned and later consented to undergo an x-ray to establish whether he was carrying drugs. He was found to have drugs in his stomach and intestines.

As a result, the applicant was later accused of various counts of importation of illegal drugs (including cocaine and heroin).

Following the submission of a guilty plea, at a time when he was assisted by a lawyer, by a judgment of 23 February 2010 the Criminal Court sentenced him to twelve years imp risonment and a fine of 50,000 e uros (EUR), as well as to the payment of EUR 1,269.90 in expert fees. In delivering judgment the Criminal Court considered that the punishment applicable for each count of the bill of indictment included life imprisonment, but it did not consider such appropriate given the circumstances of the case ‑ in particular the applicant ’ s early guilty plea and the fact that he was only a minor pawn in a big operation of illegal drug importation. The court noted however that the applicant knew what he was d oing and he had been caught red ‑ handed ‑ the latter fact should have led him to plead guilty on arraignment and made him benefit from a reduction in punishment, nevertheless he had not submitted a guilty plea at that stage.

The applicant instituted constitutional redress proceedings, and by a judgment of 4 October 2016 the Civil Court (First Hall) in its constitutional competence, found, inter alia , that there had been a breach of the applicant ’ s rights under Article 6 § 1 and 3 (c) of the Convention in relation to the statements made without the assistance of a lawyer, but not in relation to his consent to undergo the x ‑ ray. It considered however that the violation was solely a formal one given that the applicant had admitted without any conditions his guilt and thus there had been no consequence on his criminal trial. It followed that a finding of a violation constituted a sufficient remedy. It also found that there had been no violation of Article 7 of the Convention as a result of the prosecutor ’ s discretion to decide in which court to try the accused. In this respect it considered that in the present case the applicant could not have had any doubt that he was accused of serious crimes, which were regularly tried by the Criminal Court, and the applicant had failed to show any reason why he could have possibly been tried by the Court of Magistrates [where the crimes were subject to a lower punishment bracket].

On appeal solely concerning Article 6 § 1 and 3 (c) in relation to the lack of assistance of lawyer when he had gi ven his consent to undergo an x ‑ ray, and concerning the complaint under Article 7, the Constitutional Court, by a judgment of 13 November 2017, confirmed the first-instance judgment. The majority of costs of the two instances were to be paid by the applicant.

In respect of the Article 6 complaint, relying on Saunders v. the United Kingdom ( § 69, 17 December 1996, Reports of Judgments and Decisions 1996 ‑ VI) the Constitutional Court considered that such a situation had not caused the applicant any prejudice, both because had the applicant been assisted by a lawyer and then refused his consent, he would still have been forced to undergo the x ‑ ray by a magistrate in line with domestic law, and because even without the x ‑ rays the applicant would have had to eventually evacuate the drug capsules from his body. As to Article 7, while referring to Camilleri v. Malta (no. 42931/10, 22 January 2013) the Constitutional Court nevertheless considered that given the substantial quantity of drugs found, the applicant could easily have foreseen that the he would have been tried by the Criminal Court.

COMPLAINTS

The applicant complains under Article 6 § 1 and 3 (c) about the lack of assistance of lawyer at pre ‑ trial stage, when he had given his consent to undergo an x-ray, which found drugs in his intestines. He further complains under Article 7 about the discretion of the Attorney General in deciding in which court to try an accused.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 7 of the Convention? In particular, having regard to the prosecutor ’ s discretion to choose the punishment bracket applicable to the same offence, can it be said that the offence with which the applicant was charged and the relevant penalty had been clearly defined by law (see Camilleri v. Malta , no. 42931/10, 22 January 2013 and Seychell v. Malta, no. 43328/14 , 28 August 2018)?

2. Was there a breach of Article 6 § 1 of the Convention read together with Article 6 § 3 (c) of the Convention given the absence of a lawyer when the applicant was asked to consent to an x-ray examination?