Communicated on 1 September 2014

FIFTH SECTION

Application no. 77159/12 Charles Steven MUSCAT against Malta lodged on 30 November 2012

STATEMENT OF FACTS

The applicant, Mr Charles Steven Muscat , is a Maltese national, who was born in 1967 and lives in Iklin . He was originally represented by Dr J. Herrera and was subsequently represented before the Court by Dr D. Camilleri and Dr V. Dalli , lawyers practising in Valletta .

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 pre-trial investigation and specifically during interrogation 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.

2. Criminal proceedings against the applicant

On 7 August 2002 the applicant, who was serving a twenty-five year jail term, was arrested and interrogated in the absence of legal assistance, on suspicion of trafficking in cocaine and heroin. During the interrogation he made a statement admitting to his involvement in the said crime. In particular he related how, together with two other inmates and other individuals, they were importing cocaine from the Netherlands. He noted that his wife, who had dealt with money payments, was not aware that the payments were connected to drugs. He admitted to making use of heroin but not cocaine, and denied any involvement with a kilo of heroine which had been negotiated by a third person in his name.

Subsequently the applicant was arraigned before the Court of Magistrates (as a court of criminal inquiry) and his above-mentioned statement exhibited as evidence against him. A bill of indictment was issued against him in 2010.

3. Constitutional redress proceedings

On 2 December 2010 the applicant instituted constitutional redress proceedings claiming a breach of his right to a fair trial (Article 6 (3) (c)) on account of the lack of legal assistance during the investigation and interrogation. He requested the removal of his statement from the acts of the criminal proceedings.

By a judgment of 10 October 2011 the Civil Court (First Hall) in its constitutional competence found a violation of the applicant ’ s right to a fair trial in so far as the applicant was precluded from consulting a lawyer as there was no law providing for such assistance. It ordered the removal of the statement from the acts of proceedings. Having considered that such a breach could be of irreparable prejudice to the applicant it decided that it needed not wait for the criminal proceedings to come to an end.

On appeal, by a judgment of 8 October 2012 the Constitutional Court reversed the first-instance judgment and dismissed the applicant ’ s claims. The Court noted that while the complaint could appear to be premature, the Maltese Constitution provided that a remedy maybe sought not solely after a violation has occurred, or in respect of a continuing violation, but also if he or she is likely to suffer a violation. Moreover, given that the lack of legal assistance may, not exceptionally, bring about a breach of the right to a fair trial, it was not appropriate to uphold the Government ’ s objection that the case was premature. This was also in the interest of the economy of justice, because had the Government ’ s objection been upheld, and after the end of criminal proceedings a breach was to be found, those proceedings might be retried, at the expense of time and resources.

On the merits the Constitutional Court considered that there could not be a violation solely because the law did not provide for such assistance, independent of any other factors. It considered that the right to fair trial had not been granted to allow guilty people to evade justice in some way or other. It was not for the Constitutional Court to enter into the matter of whether the applicant is guilty or not but solely to determine whether the lack of legal assistance breached the applicant ’ s right to a fair trial and whether it created a risk that the applicant be found guilty when in reality he was not. In the absence of that risk no breach could ensue. Indeed in Imbrioscia v. Switzerland ( 24 Nove mber 1993, Series A no. 27) the European Court of Human Rights considered that other requirements may be relevant and it did not find a violation of the applicant ’ s right despite the fact the applicant had not had legal assistance at the interrogation. The same was held in Ahmet Mete v. Turkey ( no. 77649/01, 25 April 2006 ). The Court later appeared to have taken a different approach in Salduz v. Turkey ( [GC], no. 36391/02, ECHR 2008 ) – where the Court seemed to consider that legal assistance as from the initial interrogation stage was a requirement sine qua non to a fair trial. However, according to the Constitutional Court the Salduz case was an extreme and exceptional case, as were the cases of Panovits v. Cyprus ( no. 4268/04, 11 December 2008 ) and Płonka v. Poland ( no. 20310/02, 31 March 2009 ). Nevertheless although paragraph 55 of the Salduz judgment appeared categorical, it had to be interpreted in the light of the entirety of the judgment, in particular its preceding paragraphs 51-54. The Court noted that Maltese law, as in force at the time of the applicant ’ s statement, did not “attach consequences to the attitude of an accused” as it did not allow for any inferences from silence; thus, the applicant could have chosen not to reply and he would have suffered no consequences from that choice. Neither was the instant case one concerning any threats, violence or abuse. Moreover, in Salduz the Court reiterated that Article 6 § 3 may be relevant before a case is sent for trial “if and so far as the fairness of the trial is likely to be seriously prejudiced”.

The Constitutional Court considered that in the present case at the time of the interrogation, the applicant was an adult of a certain age (thirty-five years), he had been serving a criminal sentence since 1994, he had experience of interrogations ( Paskal v. Ukraine , no. 24652/04 , § 78, 15 September 2011 ) and was not vulnerable or easily intimidated by the surroundings. It followed that they were not the same circumstances as those in the domestic cases referred to by the applicants (see relevant domestic law and practice). In the present case, the applicant had also been informed of his right to remain silent and he did not claim to have been forced or encouraged to make a statement. Neither had he, before lodging the application with the constitutional jurisdictions, withdrawn the statement made in 2002. Moreover, the applicant was still undergoing criminal proceedings with the relevant procedural rights and the assistance of a lawyer. In that context all the evidence would be put forward and not just his statement - in respect of which the judge would also address the jury about the perils of relying solely on such a statement and might also instruct the jurors to ignore such statement if it is proven that it had been obtained under duress. It followed that there had been no violation in the present case.

4. Latest developments

The applicant was, at the time of the lodging of the application, waiting for a trial by jury to start. By September 2013 a judgment was delivered on the preliminary pleas of defence . The applicant appealed and was awaiting judgment thereon by the Criminal Court of Appeal.

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. The European Convention Act

Article 4 of the European Convention Act, (Chapter 319 of the Laws of Malta), in so far as relevant, reads as follows:

“ (1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:

Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.

(3) If any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subarticle and, subject to the provisions of subarticle (4), the court in which the question arose shall dispose of the question in accordance with that decision.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”

COMPLAINTS

The applicant complains of breach of his right to a fair trial under Article 6 § 3 (c) on account of the lack of legal assistance during the investigation and interrogation.

He further complains under Article 13 about the ineffectiveness of the Constitutional Court judgment in so far as it did not order that the statement he had released be removed.

QUESTION TO THE PARTIES

Was the applicant hindered in the effective exercise of his right to defence during the questioning and the initial stages of the criminal proceedings? 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 and the investigation stage (see Salduz v. Turkey [GC], no. 36391/02, 27 November 2008 and subsequent Salduz type cases) ?