Communicated on 21 May 2014

FIFTH SECTION

Application no. 60634/12 Simon XUEREB against Malta lodged on 10 September 2012

STATEMENT OF FACTS

The applicant, Mr Simon Xuereb , is a Ma ltese national, who was born in 1975 and lives in Ħaż - Ż ebbug . He is 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 25 April 2001 the applicant (who was twenty-five years old at the time) was arrested and interrogated on suspicion of drug trafficking. During the interrogation, at which no lawyer was present, he released a statement admitting to his involvement in the said crime.

On 26 April 2001 the applicant was arraigned before the Court of Magistrates (as a court of criminal inquiry) and the above-mentioned statement exhibited as evidence against him. At the end of the committal proceedings a bill of indictment was issued and his trial by jury was appointed for 6 May 2004 before the Criminal Court. Following plea bargaining negotiations the Attorney General issued a counter order for proceedings to be heard before the Court of Magistrates (as a court of criminal judicature).

On 2 December 2004 the accused and the prosecution presented a joint note whereby they agreed on a punishment of imprisonment for nine years and a fine of approximately EUR 23, 300.

On 1 March 2005 the accused (a recidivist) admitted all the charges. He was cautioned by the court about the consequences of such a plea and allowed a time to retract it. The applicant, however, persisted in his plea. By a judgment of 20 April 2005 the Court of Magistrates handed down the above-mentioned penalty.

The applicant appealed, requesting that while the appellate court should confirm the decision in so far as his plea of guilty was concerned, it should vary it as regards the punishment and inflict instead a lesser one. By a judgment of 20 May 2009 the Court of Criminal Appeal confirmed the imprisonment term but reduced the fine to EUR 11, 647.

3. Constitutional redress proceedings

On 30 May 2011 the applicant instituted constitutional redress proceedings claiming a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and interrogation. He requested the court to declare the proceedings against him null and void.

By a judgment of 14 October 2011 his claims were dismissed. The Civil Court (First Hall) in its constitutional competence noted that the applicant ’ s incriminating statement had been given in the absence of a lawyer, nevertheless the proceedings could not be considered null for the following reasons. Firstly, the right to be assisted by a lawyer had not been created by means of recent case-law but had existed already at the time when proceedings were taken against the applicant, and at the time no such challenge had been made. Indeed the applicant did not challenge his statement before the Court of Magistrates, nor before the Court of Criminal Appeal. On the contrary he reiterated his statement despite being warned of the consequences and he filed a guilty plea, following a plea bargaining agreement during which he was assisted by a lawyer. He also failed to appeal the finding of guilt, limiting his appeal to the punishment handed down, and therefore had wanted to take responsibility for his actions. The applicant, thus, could not complain about the matter three years after the judgment, finding his guilt, had become res judicata . Secondly, the court noted, that the finding of guilt by the court of criminal judicature was not solely based on the applicant ’ s statement given in the absence of a lawyer but there existed other evidence connecting the applicant to the crimes. The same considerations were made by the Court of Criminal Appeal when assessing the applicant ’ s guilt and the punishment handed down.

Lastly, the court noted that, as held by the Constitutional Court in Police v Lombardi, Convention case-law cannot have retroactive effect, effecting judgments which have become res judicata . This was the same line of reasoning taken by the British courts in the case of Caddar (cited below). In that case the Constitutional Court had noted that “the retrospective effect of a judicial decision is excluded from cases that have been finally determined” ( A. v. The Governor of Harbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, para 36).

The applicant appealed.

By a judgment of 28 June 2012 the Constitutional Court confirmed the first-instance judgment. It considered that the present case differed from the three judgments relied upon by the applicant (see relevant domestic law) in so far as they had concerned proceedings which were still pending, while the present case concerned a judgment which had become final.

The Constitutional Court noted that in 2001 the applicant 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 the applicant could not complain about that matter. Moreover, the finding of guilt would not have been based solely on the applicant ’ s incriminating statement, because there existed other evidence such as the police officers ’ testimony as to the applicant ’ s statement, and other statements made in other criminal proceedings concerning the same crimes, including statements the applicant chose to make (after consulting a lawyer) in those proceedings, as well as a video recording involving the applicant and other suspects, and the applicant ’ s connection with the address where the drugs had to be received by post. Furthermore the applicant 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.

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.”

3. Domestic case-law

In the wake of the new law, a number of accused persons instituted constitutional redress proceedings pending their criminal proceedings. 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 v 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 during interrogation. The relevant details are as follows:

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

The circumstances of the case concerned the accused, at the time eighteen years of age, being questioned in the absence of a lawyer. During the questioning he had denied selling heroine to X (who died of an overdose) but he 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 to institute proceedings against the applicant for possession and trafficking of drugs.

The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz v Turkey and subsequent jurisprudence in line with it. 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 interrogation of a suspect by the police. Even where compelling reasons may 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 defense will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are 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 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 release a statement and that he had been warned about 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 the young age of Mr Salduz had not been a determining factor for the finding in the case, it having been merely a further argument. Moreover, it was not necessary to examine whether there existed any impelling reasons to justify the absence of a lawyer during the interrogation in so far as, at the relevant time, Maltese law did not provide for the right to legal assistance at that stage of the investigation. There was therefore a systematic restriction of access to a lawyer pursuant to 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 given from the very start of the investigation but did not require that an accused be assisted during the interrogation.

The Constitutional Court did not order the statements to be excluded from the act of the proceedings, limiting itself to ensuring that the court of criminal judicature be informed of the said judgment for it to be able to decide accordingly on the validity and admissibility of the statement made.

The Police vs Esron Pullicino of 12 April 2011 judgment confirming 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 the accused had released a statement in the absence of a lawyer which was the sole evidence of the prosecution. The accused was, moreover, a minor. The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera above, failing short, however, of reiterating the court ’ s opinion in relation to assistance during the actual interrogation.

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

In this case the accused had released 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 implies possession according to Maltese case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking.

The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera and Esron Pullicino cited above. It further noted case-law subsequent to Salduz , where 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 in the statements released by the applicants ( Yeşilkaya v. Turkey , no. 59780/00 , 8 December 2009 ). In Boz v. Turkey (no. 2039/04 , 9 February 2010) the Court highlighted that systematic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. It further referred to the finding in Cadder v. Her Majesty ’ s Advocate [2010] UKSC 43 which concerned the same situation in the Scottish system and where that court accepted 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.

It would appear that following the above mentioned judgments of 2011, the Constitutional Court altered its interpretation of the Salduz judgment in a number of cases (see Charles Stephen Muscat v The Attorney General , 8 October 2012; Joseph Bugeja v The Attorney General , 14 January 2013; The Police v Tyron Fenech , 22 February 2013 and The Police v Amanda Agius , also of 22 February 2013). It started considering it as an exceptional case, and interpreting 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 the Constitutional Court ’ s reasoning in the applicant ’ s case). As a result, a number of cases where, because of the lacuna in Maltese law, the accused had not been represented by a lawyer, had been found not to violate the Convention and the Constitution. Nevertheless, despite the recent interpretation of the Salduz jurisprudence, in The Republic of Malta v 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.

COMPLAINT

The applicant complains under Article 6 § 3 in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody, relying on the judgment of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008).

QUESTIONS TO THE PARTIES

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

2. If so, was the applicant hindered in the effective exercise of his right to defence during the questioning on 25 April 2010? 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)?