Communicated on 24 March 2014

FIFTH SECTION

Applications nos 23243/13 and 23343/13 Tyrone FENECH against Malta and Amanda AGIUS against Malta lodged on 18 March 2013 and 18 March 2013 respectively

STATEMENT OF 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 are represented before the Court by Dr D. Camilleri , a lawyer practising in Valletta .

A. The circumstances of the case

The facts of the case, as submitted by the applicants, 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 us ing 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 applicant s were arraigned in the Court of Magistrates (as a court of c riminal j udicature) and their above-mentioned statement s were exhibited as evidence against them .

On 1 December 2009 d uring the criminal proceedings, the applicant s requested the court to make a refer ral to the constitutional jurisdictions regarding complaint s 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 applicant s 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 th at their statement s - 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 o f 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 c ourt of c riminal j udicature) , 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 Constitu tional 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 statement s 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 pe rsons to be found not guilty. The role of the lawyer wa s 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 we re 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 presen t 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 provide d 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 c ourt of c riminal j udicature) , 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 tha t 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 respect of the first applicant, Mr Fenech .

6. The criminal proceedings

The criminal proceedings against the applicants are still pending be fore the Court of Magistrates (as a court of c rim inal j udicature) , which has suspended the case pending the out come of the proceedings before this C ourt.

B. Relevant domestic law

1. Legal assistance during pre-trial investigation

By commencement notice, published as Legal Notice 35 of 2010 , Malta established the date on which the provisions of the Criminal Code (A mendment ) Act 2002 (Act III of 2002) , which enshrined the right to legal assistance, came into force. I t 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, the relevant parts of Article 355AT of the Criminal Code now read 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 [ sic ] before being questioned the person in custody shall be informed by the Police of his rights under this subarticle ... ”

3. The European Convention Act

The relevant parts of Article 4 of the European Convention Act, Chapter 319 of the Laws of Malta, read 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 applicants complain of a breach of their right 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 statement s be excluded .

QUESTION S TO THE PARTIES

1. Were the applicant s hindered in the effective exercise of their right to defence when they released their statement on oath to the magistrate on 12 February 2004? In particular, were the applicants under arrest at the moment when they released their statements? If not, did the circumstances disclose a significant curtailment of their freedom of action which could be sufficient for activating a requirement for legal assistance ? If so, 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 said questioning (see Salduz v. Turkey [GC], no. 36391/02, 27 November 2008 and Bouglame v. Belgium ( dec. ), no. 16147/08, 2 March 2010 )?

2. Where they questioned by the magistrate or in the magistrate ’ s presence in connection with their statements on oath?

3. Under what specific provision/s of the Medical and Kindred Professions Ordinance were the applicants taken/summoned for the purposes of the statements on oath?

4. The Government are requested to provide copies of the proceedings before the Court of Magistrates as a Court of Criminal Judicature in respect of both applicants, including copies of the statements on oath and of the proces -verbal , if any, drawn up when the statements on oath were made before the magistrate.