Communicated on 10 November 2015

FOURTH SECTION

Application no. 63041/13 Carmel Joseph FARRUGIA against Malta lodged on 30 September 2013

STATEMENT OF FACTS

The applicant, Mr Carmel Joseph Farrugia, is a Maltese national, who was born in 1951 and lives in Paola. He is represented before the Court by Dr J. Brincat , a lawyer practising in Malta.

A. The circumstances of the case

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

1. Background to the case

By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre-trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage.

Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer.

2. Criminal proceedings

On 29 January 2002 a hold-up took place in the applicant ’ s business premises, while he was present. The Police suspected that this was not a case of a hold-up but of fabrication of false evidence.

On 1 February 2002 the Police questioned the applicant, in the absence of a lawyer. During the interrogation the applicant categorically denied any wrongdoing and explained to the Police that four individuals had entered the premises tied him up, and stolen money, amongst other things. Subsequent to the interrogation, and whilst the applicant was still in police custody, the applicant requested that his statement be tape-recorded and his request was acceded to.

On 2 February 2002 the applicant was brought before the Court of Magistrates, as a Court of Criminal Inquiry, together with his employee A.F. They were charged with fabrication of false evidence, simulation of offence, fraud relating to insurance and false swearing under Articles 110 (1) and (2), 295 and 108 of the Maltese Criminal Code, Chapter 9 of the Laws of Malta. The applicant was also charged with being a recidivist.

On 24 July 2002, upon a request by the prosecution, the case of the applicant was separated from that of his employee A.F. in order to be judged separately. On 30 June 2003 A. F. was found guilty of simulation of an offence. On 2 April 2004 the Court of Criminal Appeal confirmed the judgment against A. F.

On 19 May 2006 A.F. gave evidence in the applicant ’ s criminal proceedings.

On 23 January 2007, the Court of Magistrates, as a Court of Criminal Judicature, on the basis of the evidence in the case-file, found the applicant not guilty of all the charges brought against him and acquitted him. It noted that there were two diametrically opposite versions (the applicant ’ s and A.F ’ s) , there was therefore a reasonable doubt which had to go in favour of the applicant.

On 6 February 2007 the Attorney General (A.G.) appealed against that judgment.

By a judgment of 21 June 2007, the Court of Criminal Appeal varied in part the judgment of the Court of Magistrates, and found the applicant guilty of simulation of an offence under Article 110 (2) of the Criminal Code. It held that although the applicant had repeatedly and categorically denied any wrongdoing, he was not reliable in the light of the evasive and hesitant way in which he answered to Police questions. The Court of Criminal Appeal also relied on other circumstances such as the fact that the CCTV did not record the events on the day of the alleged hold-up. It sentenced the applicant to one year ’ imprisonment, suspended for four years.

3. Constitutional redress proceedings

On 15 June 2011, the applicant filed an application before the Civil Court (First Hall), in its constitutional jurisdiction, claiming a violation of Article 6 of the Convention on the basis that, inter alia , the Court of Criminal Appeal ’ s judgment was based on statements given by the applicant to the police without the assistance of a lawyer.

By a judgment of 29 October 2012, the Civil Court (First Hall) rejected the applicant ’ s complaints. The court recalled the first-instance judgment in the names of The Police vs Mark Lombardi , Civil Court (First Hall) in its constitutional competence, 9 October 2009, where it had been held that the mere fact that a person was not assisted by a lawyer during police interrogation did not violate an applicant ’ s fundamental rights. It had also held that for there to be a violation of Article 6 of the Convention, one must consider the proceedings as a whole and not the statements in isolation. The court noted however, that the first instance judgment was overturned by the Constitutional Court, on 12 April 2011, whereby it found a violation of the rights of the individual concerned as the lack of legal assistance deprived objectively the applicant of a fair trial. However, the Constitutional Court in that judgment also made it clear that the Court ’ s case law should not have retroactive effect and should not be applicable to judgments that had become res judicata – it had not been so in that case since proceedings were still pending. The situation was different in the present case.

The court also recalled that in The Police vs Erson Pullicino , Constitutional Court judgment of 24 February 2012, the court distinguished that case from the Lombardi case, in so far as unlike in the latter case, the applicant was a minor when he had been questioned and the only evidence against him was his own statement.

Thus, the court relying on the Constitutional Court ’ s position on res judicata , in the case of Lombardi , cited above, dismissed the applicant ’ s case.

On 16 November 2012 the applicant appealed against the Civil Court (First Hall) ’ s judgment to the Constitutional Court, arguing that the former was wrong in finding that courts of constitutional competence did not have the function to assess what had happened in criminal proceedings that had become res judicata .

By a judgment of 5 April 2013, the Constitutional Court rejected the applicant ’ s complaints.

The court recalled its judgment in the names of Charles Stephen Muscat vs Attorney General of 8 October 2012 and held that it could not be said that a lack of legal assistance objectively deprived an applicant of a fair trial. It considered that the test was not solely to determine whether an individual did not have legal assistance during the interrogation. It had to be determined whether such a shortcoming resulted in a violation of the right to a fair trial and whether it created a danger that the individual could be found guilty when he was actually innocent. In its view, if there was no such danger, there would be no violation of the right to a fair trial.

The court also recalled the judgment of The Republic of Malta vs Carmel Camilleri of the Constitutional Court of 22 February 2013 in which it had been held that the right to legal assistance during interrogation was not intended to create a formality, which, if not observed, provided the accused with a means to avoid conviction. This right was intended to ensure that the statement was given freely by the person being questioned, in the knowledge of the right to remain silent, without threats, promises, violence or any other abusive behaviour. That court had also held that the right to a fair trial was violated when a statement was taken abusively and not merely because it was given without legal assistance.

In the present case, the Constitutional Court held that although there may be circumstances where it could provide a remedy if it found that a statement was taken abusively despite the criminal proceedings having come to an end and the judgment having become res judicata , in the present case the applicant had given his statement on 2 February 2002. He never alleged that the statement was taken abusively. Moreover, he did not even raise this complaint when filing the constitutional application on 15 June 2011 – it was only on 23 March 2012, more than eleven years after releasing the statement, that the applicant requested a correction in the constitutional application to add the complaint concerning his statement, possibly because the applicant had become aware of the Court ’ s Salduz v. Turkey judgment, of 27 November 2008, and realised that it could give him another means of defence.

The Constitutional Court held that the fact that the applicant never raised a complaint before the courts of criminal jurisdiction, when he had every opportunity to do so, was proof that he did not feel that this was of prejudice to him or that his statement was taken abusively. It held that the applicant could not now, without abusing the judicial process, expect to reopen a closed case which had become res judicata , once he had not raised the issue previously.

It was also relevant that the Court of Criminal Appeal did not rely solely on the applicant ’ s statement, but also on other means of corroboration. Consequently, in the Constitutional Court ’ s view the applicant ’ s statement was not determinative to the finding of guilt and the first-instance court had been right in not disturbing a judgment which had become res judicata .

B. Relevant domestic law and practice

1. Legal assistance during pre-trial investigation

Legal Notice 35 of 2010 provided for the commencement notice of the Criminal Code amendment Act 2002 (Act III of 2002) which enshrined the right to legal assistance and reads as follows:

“BY VIRTUE of the powers granted by subarticle (2) of article 1 of the Criminal Code (Amendment) Act, 2002, the Minister of Justice and Home Affairs has established the 10th February, 2010 as the date when the provisions of articles 355AT, 355AU, paragraphs (b) and (c) of subarticle (2) and subarticles (3) and (4) of article 355AX, and article 355AZ which are found in article 74 of the Act above mentioned shall come into force.”

Pursuant to the above notice, Article 355AT of the Criminal Code, in so far as relevant now reads as follows:

“(1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle. (...)”

2. Relevant case-law

(a) Cases decided in 2011

In the wake of the new law, a number of accused persons instituted constitutional redress proceedings during the pendency of the criminal proceedings against them or requested the relevant criminal courts to make a referral to the constitutional jurisdictions. In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations of three judges), namely The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011, and The Police vs Mark Lombardi , also of 12 April 2011. In the three cases the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. The relevant details are as follows:

i . The Police vs Alvin Privitera, Constitutional Court judgment of 11 April 2011, upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.

The case concerned the fact that the accused, at the time eighteen years of age, had been questioned in the absence of a lawyer. During questioning he had denied selling heroin to X (who died of an overdose) but had admitted to selling cannabis to him. Subsequently the accused alleged that he had been forced by the investigating official to admit to the accusations. This was the sole evidence which the prosecution had in hand in order to institute proceedings against the applicant for possession and trafficking of drugs. The accused ’ s criminal proceedings were still pending when he raised his constitutional complaint.

The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz v. Turkey and the subsequent line of case-law. In particular it noted that, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 required that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer were used for a conviction. Given that the absence of a lawyer at the investigation stage could irretrievably prejudice the accused ’ s right, the court considered that where there existed sufficient reasons indicating a violation, it should not wait for the end of the criminal proceedings in order to examine the merits of the case.

The Constitutional Court rejected the Government ’ s plea that the applicant had not raised the issue until the prosecution had finished submitting evidence, noting that in the domestic legal system there was no deadline for raising constitutional claims. It found the Government ’ s argument that the accused had not been forced to give a statement, and that he had been informed of his right to remain silent, to be irrelevant given the established case-law of the European Court of Human Rights and in particular the Salduz judgment.

The right to legal assistance was linked to the right not to incriminate oneself; it allowed a balance to be reached between the rights of the accused and those of the prosecution. The argument that it would otherwise be difficult for the prosecution to reach a conviction could not be taken into consideration for the purposes of this balance. The Constitutional Court further noted that Mr Salduz ’ s young age had not been the decisive factor for the finding in that case, but merely a further argument. Moreover, it was not necessary in the case at hand to examine whether there existed any compelling reasons to justify the absence of a lawyer during questioning or whether such restrictions prejudiced the case, in so far as at the relevant time Maltese law had not provided for the right to legal assistance at that stage of the investigation and therefore there had been no need for the accused to request it. There had therefore been a systemic restriction on access to a lawyer under the relevant legal provision in force at the time. It followed that there had been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.

The Constitutional Court further noted that in its view the right to be assisted by a lawyer must be granted from the very start of the investigation and before the person being investigated gave a statement, but it did not require that an accused be assisted during questioning.

The Constitutional Court did not order the statements to be expunged from the record of the proceedings, but it ordered that the Court of Criminal Judicature be informed of the said judgment so that it could decide accordingly on the validity and admissibility of the statement made.

ii. The Police vs Esron Pullicino , judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.

The circumstances of the case were similar to the case above in so far as the accused had given a statement while in police custody in the absence of a lawyer and this statement was the sole evidence for the prosecution. The accused was, moreover, a minor. The criminal proceedings were still pending when the applicant raised his constitutional complaints. The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera , cited above, stopping short, however, of reiterating the court ’ s opinion in relation to assistance during the actual questioning.

iii. The Police v Mark Lombardi, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.

In this case the accused had made two statements in the absence of a lawyer, in the first denying any connection with possession or trafficking of drugs, and in the second admitting to having taken ecstasy pills (which amounts to possession according to the case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking. The criminal proceedings were still pending when the applicant raised his constitutional complaints.

The Constitutional Court reiterated the same reasoning applied in the cases of Alvin Privitera and Esron Pullicino , cited above. It further noted case-law subsequent to Salduz in which the Court had found a violation despite the fact that the applicant had remained silent while in police custody ( Dayanan v. Turkey , no. 7377/03, 13 October 2009) and despite there being no admission of guilt in the statements given by the applicants ( Yeşilkaya v. Turkey , no. 59780/00 , 8 December 2009 ). In Boz v. Turkey (no. 2039/04 , 9 February 2010) the Court had stressed that the systemic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. The Constitutional Court further referred to the finding in Cadder v. Her Majesty ’ s Advocate [2010] UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter.

The Constitutional Court stopped short of reiterating the court ’ s opinion in Alvin Privitera in relation to assistance during the actual interrogation. It however added that Salduz should not apply retroactively to cases which had become res judicata this was not so in the present case given that the proceedings were still pending.

(b) Subsequent cases

Following the above-mentioned judgments of 2011, the Constitutional Court started to consider Salduz as an exceptional case and to interpret it to the effect that a number of factors had to be taken into consideration when assessing whether a breach of Article 6 had occurred (see, for example, Charles Stephen Muscat vs The Attorney General , 8 October 2012; Joseph Bugeja vs The Attorney General , 14 January 2013; The Police vs Tyron Fenech , 22 February 2013; and The Police vs Amanda Agius , also of 22 February 2013, and the Constitutional Court ’ s reasoning in the applicant ’ s case). As a result, a number of cases where the accused had not been represented by a lawyer – because the matter was not regulated in Maltese law – were found not to violate the Convention and the Constitution. Nevertheless, in The Republic of Malta vs Alfred Camilleri of 12 November 2012 the Constitutional Court, in the particular circumstances of the case, found a violation of the accused ’ s fair trial rights, in particular because he had not even been cautioned by the police. However, following a request for retrial which was upheld by a judgment of the Constitutional Court of 31 January 2014, no violation was found in that case because the accused, who had given a statement in the absence of a lawyer, had not been forced to reply to the questions put to him by the police, nor was he particularly vulnerable to the extent that he would have required the assistance of a lawyer. The accused was fifty-five years old and therefore mature. While he had never been to prison or been questioned, he had already been found guilty of minor charges and therefore was acquainted with the law. Lastly, his statement had not been the only evidence, as some police officers had been eyewitnesses to his handling of the drugs in issue.

(c) Other relevant case law

Simon Xuereb v the Attorney General, Constitutional Court judgment of 28 June 2012

The Constitutional Court considered that the case was different from the three 2011 judgments relied upon by the applicant (see above) in so far as they had concerned proceedings which were still pending, while the case of Mr Xuereb concerned a judgment which had become final.

The Constitutional Court noted that in 2001 Mr Xuereb had been cautioned, that is, informed of his right to remain silent and that anything he said could be taken down and produced as evidence, and yet he chose to make a statement. At the time Maltese law did not provide for the assistance of a lawyer and the Salduz judgment had not yet been delivered by the Grand Chamber. It followed that Mr Xuereb could not complain about that matter. Moreover, the finding of guilt would not have been based solely on his incriminating statement, because there existed other evidence such as the police officers ’ testimony as to Mr Xuereb ’ s statement, and other statements made in other criminal proceedings concerning the same crimes, including statements Mr Xuereb chose to make (after consulting a lawyer) in those proceedings, as well as a video recording involving Mr Xuereb and other suspects, and his connection with the address where the drugs had to be received by post. Furthermore he chose to admit to the crimes and settle for a plea bargain. Thus, given his actions during those proceedings he could not now complain of a breach of his rights. It further referred to its established practice based on English case-law to the effect that the retrospective effect of a judicial decision is excluded from cases that have been finally determined.

COMPLAINT

The applicant complains under Article 6 § 3 (c) in so far as he did not have legal assistance during the police interrogation.

QUESTIONS TO THE PARTIES

1. Can it be said that in the Maltese legal system there existed an established coherent doctrine to the effect that if an applicant does not raise his complaint during the criminal proceedings, he or she would be precluded from raising the matter in constitutional redress proceedings (reference is made to the findings of the Constitutional Court in The Police vs Alvin Privitera of 11 April 2011 Constitutional Court, concerning the Government ’ s objection in this respect and the merits of the case, in comparison with the findings of the Constitutional Court in the present case)?

2. Can it be said that in the Maltese legal system there existed an established doctrine to the effect that the retrospective effect of a judicial decision is excluded from cases that have been finally determined (i.e. became res judicata )?

3. In the light of the above practices, can it be said that the applicant lodged his complaint in accordance with the applicable procedural rules and established practice, thus, fulfilling the requirements of Article 35 §§ 1 and 4 of the Convention?

4. If so, was the applicant hindered in the effective exercise of his right to defence during the questioning on 1 February 2002? In particular, 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 during the questioning (see Salduz v. Turkey [GC], no. 36391/02, 27 November 2008 and subsequent Salduz type cases)?