FOURTH SECTION

Application no. 37537/13 Mario BORG against Malta lodged on 28 May 2013

STATEMENT OF FACTS

The applicant, Mr Mario Borg , is a Maltese national, who was born in 1976 and is currently detained at the Coarradino Correctional Facility, Paola . He is represented before the Court by Dr David Camilleri , Dr Marion Camilleri and Dr Joseph Gatt, lawyer s 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 (police investigation) stage. However, t he law only came into force in 2010 by means of Legal Notice 35 of 2010. Thus, before that date, Maltese law did not provide for legal assistance during pre-trial investigation and specifically during interrogation by the police or by a magistrate acting in an investigative capacity . Prior to questioning suspects would be cautioned, that is be informed only of their right to remain silent and that anything they said could be taken down and produced as evidence. A t the time , no inferences could be drawn by the trial courts from the fact that the accused had remained silent when interrogated as aforesaid .

2. Criminal proceedings

Mr Borg, at the time twenty seven years of age, was arrested on 1 5 April 2003 on suspicion of importation and trafficking of drugs (heroine) in relation to two episodes in March and April 2003. On 17 April 2003 w hile under arrest and precisely during questioning , after being duly cautioned about his right to remain silent, in the absence of a lawyer, the applicant released a statement to the police which however he refused to sign.

In his statement he said that he regularly drove a white ford escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts of 3 March 2003 and that he did not know a certain N and M, and another three Turkish nationals (K, R and MI). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville , or having received anything from M or ever having made a phone call to two specific numbers shown to him by the police. He further denied having driven to Paceville with his wife in his car and making contact with M on 5 March 2003 as well as the fact that on that day M had given him heroin capsules in the presence of his wife. He, however, claimed to have gone to Paceville at 10.00 am to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever made use of heroin, and as to when was the last time he made such use. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he did not know the purpose of the paper which had been in his car for a very long time.

On the same day the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also exhibited another two statements , implicating the applicant, given by two prosecution witnesses (N and M , two Turkish female drug couriers) who had also been arrested and investigated in connection with the same crimes, and who also had not been legally assisted during the police investigation into their case .

In the meantime, on 15 April 2003 the duty magistrate (C) was informed that the applicant had been arrested, that a search had been effected at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the inquiry relating to the in genere , she appointed the police investigating officer to hold an on site inquiry, and at the same time appointed a number of experts to assist him. In their document of appointment, however, the experts were required to report to her their findings within three days. On the following day she acceded to the Commissioner of Police ’ s request to order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In her procès-verbal of 23 April no findings were reported by her given that on 21 April 2013 the Commissioner of Police requested the said magistrate to close the inquiry since committal proceedings had already started in respect of the applicant. All the relevant documents were attached to the procès-verbal and the record of the in genere sent to the Attorney General.

The same magistrate (C) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The bill of indictment was filed by the Attorney General on 14 June 2006.

In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported or taking steps preparatory to the importation of heroin between February and 15 April 2003 ; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in in such circumstances which indicated that it was not for his exclusive use. The court sentenced him to twenty-one years im prisonment and a fine of 70,000 euros (EUR) .

The applicant appealed claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of facts and a disproportionate punishment.

During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional jurisdictions on constitutional grounds (different to the ones raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request.

By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant ’ s appeal was dismissed and the first-instance judgment confirmed ( save for a slight change in respect of the timing of the third charge).

In so far as relevant, the Court noted that the jury had the advantage of seeing and hearing all the witnesses and that the jurors had arrived at the conclusion that they should not rely on the applicant ’ s version, given in his statement. The first issue which the jury had to decide was whether the two couriers (N and M) had made contact with the applicant in March 2003. In his statement to the Police the applicant denied knowing the two women and other persons mentioned by them, and also denied that he had made and received calls to and from Turkey. On the other hand the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N food, gloves, disinfectant and a laxative, and to whom M had given the capsules they had carried in their stomach. A number of factors gave credibility to the women ’ s identifica tion of the applicant i) the circumstances of the meetings they had with him where he was using a white, four-door car and was in the company of an Asian woman; ii) the applicant ’ s statement that he made use of a white four door Ford Escort and that he was married to a Thai woman ; iii) the fact that when arrested, N and M had separately identified the applicant in photos; iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage ( kumpilazzjoni ) and before the jury. In the light of all those factors the jurors could reasonably conclude that the person whom N and M had met in March 2003 and to whom they had delivered the capsules had been the applicant.

This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police . The experts had stated that the capsules contained heroin. The court rejected the applicant ’ s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug mules were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered as a key transit route to Europe for heroin.

It appeared from the evidence given by the two women that they imported heroin in April 2003, which was the second time they came to Malta. They had been forced to return in April since , in March , M had lost most of the capsules she was carrying when throwing up in the aeroplane. The court considered that a recipient would expect to receive the full delivery and therefore it was logical for the supplier to force the courier to deliver what had been missing due to her fault. It followed that , from their testimony , it was reasonable for the jury to conclude that what N and M had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it a conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M had indicated the a pplicant as the recipient. The c ourt rejected the applicant ’ s argument that he could not be the recipient because the women had referred to someone whose father passed away, which was not the case for the applicant. It considered th e relevant part of the statement by the wome n as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant.

The court further noted that on 15 April 2003 when the del ivery was meant to take place, t he Police had seen the applicant drive around the area (at least three times) in his white Ford Escort , a short time before M was arrested. Indeed the jurors had not believed the applicant ’ s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant denied any connection with Turkey, despite the fact that h e could not explain the name of Turkish person s written on a piece of paper which was found in his car and which he admitted to have written himself, and that N had testified that the applicant had spoken to a Turkish person over the phone.

The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003.

3. Constitutional Redress proceedings

The applicant instituted constitutional redress proceedings claiming a breach of his ri ght to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same m agistrate who conducted the in genere inquiry ( inkjesta ) was also the magistrate who conducted the compilation of evidence in committal proceedings ( kumpilazzjoni ). He requested a remedy including , but not limited to , the declaration that the criminal proceedings be annulled together with the payment of compensation.

By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant ’ s claim.

In respect of the statement made by the applicant on 17 April 2003 the court noted as follows (i) the applicant had not raised the issue pending his criminal proceedings, and the judgment was now res judicata ; (ii) neither did he raise the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii) the applicant ’ s statement was not determining to his finding of guilt – in his statement he had not admitted to trafficking in drugs or that he knew N and M, and he had chosen to remain silent to questions about drug use; (iv) while it was true that the Court of Criminal Appeal had referred to extracts of his statement, it was not the basis of his conviction, which was based on the evidence given in court of M and N and the results of the previous identification parades – indeed he had said nothing relevant in his statement.

The court concluded that the proceedings , having ended , it had to look at the entirety of the proceedings and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him and the fact that he did not have legal assistance during interrogation did not effect in an irreparable way his right to defend himself.

The court rejected the second complaint in relation to legal assistance of the witnesses in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged and the applicant could challenge them during the trial and opted not to do so. Lastly, in relation to the third complaint it held that the Magistrate conducting the in genere was independent from the police, d id not act as a prosecutor and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant ’ s case was moreover tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30 October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passiveness.

By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant ’ s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made the statement. The ratio of the right was precisely that , and not to allow guilty person s to be let off scott -free because of a formality which had no real or grave consequences. In the present case the applicant did not claim that he was forced into the statement or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding such abuses which in fact did not happen in the applicant ’ s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage , namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant ’ s case and thus there could be no violation of his rights. The Constitutional C ourt held that even if the statement had been determining for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever as t he applicant had not admitted to anything and the Court o f Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant ’ s version. It had been other evidence that had led to his finding of guilt. Lastly, th e Constitutional C ourt noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article 6.

As to the complaint related to the witnesses , the court did not rule out the applicant ’ s standing which could come in to play if their statements had been made under duress . H owever , it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly , it confi rmed the reasoning of the first- instance court relating to the impartiality of the Magistrate, finding the applicant ’ s argument opportunistic.

B. Relevant domestic law and practice

1. The “ in genere ” inquiry ( inkjesta )

The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows:

Article 546

“ (1) Saving the provisions of the next following subarticles , upon the receip t of any report, information or complaint in regard to any offe nce liable to the punishment of imprisonment exceeding three year s, and if the subject-matter of the offence still exists, the sta te thereof, with each and every particular, shall be described, and the instrument, as well as the manner in which such instrumen t may have produced the effect, shall be indicated. For the purpose of any such investigation, an inquest on the spot shall be held: ( ... )”

Article 547

“ (1) The inquest shall be held by a magistrate. ( ... )”

Article 548

“ The necessary experts shall be employed for the purposes of the inquest, and a procès-verbal thereof shall be drawn up: ( ... )”

Article 549

“ (1) The procès-verbal shall be signed by the magistrate or officer holding the inquest.

(2) If the experts employed s hall express their opinion in a written report duly confirmed on oat h, such report shall be annexed to the procès-verbal and shall be deemed to form part thereof.

(3) The depositions of witnesses examined at the inquest shall also be annexed to the procès-verbal .

(4) Such depositions shall be taken in the manner provided for the examination of witnesses by the court of crimina l inquiry, and shall have the like effect. ”

Article 550 (as amended in 2006)

“ (1) The procès-verbal , if regularly drawn up, shall be received as evidence in the trial o f the cause, and the witnesses, experts or other persons who took p art in the inquest shall not be produced to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry.

(2) Nevertheless it shall be lawful for the Police to produce any of the persons mentioned in subarti cle (1) to give evidence in the inquiry before the Court of Magistrat es as court of criminal inquiry on specific issues and for the Att orney General to produce any of the said persons in accordance with the provisions of article 405. It shall also be lawful for the perso n charged to produce any of the said persons for the purpose of cross-examination .

(3) The court shall also, for the like effect, have power to order the production of any expert or othe r witness who shall appear from the procès-verbal to have been e xamined at the inquest; and for such purpose any such expert or wit ness shall, in all cases within the jurisdiction of the Criminal Court, be included in the list of the witnesses of the Attorney General, to be, if necessary, examined.

(4) All documents, however, and any other material object, in respect of which a procès-verbal h as been drawn up, and which can be preserved and conveniently exhi bited, shall always be produced at the trial, together with the procès-verbal .

(5) The procès-verbal shall be deemed to have been regularly drawn up if it contains a short sum mary of the report, information or complaint, a list of the witnesse s heard and evidence collected, and a final paragraph containin g the findings of the inquiring magistrate. ”

2. The inquiry - committal proceedings ( Kumpilazzjoni )

The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows:

Article 389

“ In respect of offences liable to a punishment exceeding the jurisdiction of the Court of Magistrates as court of criminal judicature, the Court of Magistrates shall proceed to the necessary inquiry. ”

Article 390

“ (1) The court shall hear the report of the Police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the repo rt. Everything shall be reduced to writing. ”

Article 401

“ ( ... ) (2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge. ( ... )”

3 . Legal assistance during pre-trial investigation

Legal Notice 35 of 2010 provided for the commencement notice of the Criminal Code amendment A ct 2002 (Act III of 2002) which enshrined the right to legal assistance, it 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 custo dy at a police station or other authorised place of detention shall, i f he so requests, be allowed as soon as practicable to consult p rivately with a lawyer or legal procurator, in person or by teleph one, 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 . ( ... )”

4. Domestic case-law

In the wake of the new law, a number of accused persons pending their criminal proceedings instituted constitutional redress proceedings. In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations), 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 effectiv e” 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 r ight 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 C onstitutional C ourt further noted that the young age of Mr Salduz had not been determinant to the finding in the case, it being solely 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 but 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 sh ort, 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 (implied possession under Maltese legal practice) 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 , w h ere 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 C onstitutional C ourt stopped short, however, 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.

From the above cases before the domestic Court s , it would appear that following the above mentioned judgments of 2011, sometime in 2012 the Constitutional Court altered its interpretation of the Salduz judgment in a number of cases. 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 assisted 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 vs Alfred Camilleri of 12 November 2012, the Constitutional Court in the circumstances of that case found a violation of the accused ’ s fair trial rights, in particular because he had not even been cautioned by the police.

COMPLAINTS

The applicant complain s under Article 6 § 3 in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody in his case contrary to that established in the judgment of Salduz v. Turkey ( [GC], no. 36391/02, ECHR 2008 ) .

Moreover, he complained that the lack of legal assistance to third parties who were called as witnesses against him, also affected the fairness of his trial.

He also complains under Article 6 § 1 about a lack of objective impartiality resulting from the system in place in Malta in so far as the Magistrate performing invest igating functions, namely conducting the inquiry relating to the in genere , who decided on whether a person should be charged, was the same as that sitting in the Court of Magistrates as a Court of Criminal Inqui ry, and who thus, in the present case, decided that the applicant should be committed to trial on indictment .

Under Article 6 § 1 t he applicant also co mplained about the conflicting C onstitutional Court judgments on the matter delivered by the supreme court of the land, which ran counter to the principle of legal certainty as upheld in Beian v. Romania ( (no. 1), no. 30658/05, ECHR 2007 ‑ V (extracts)).

The applicant further complains that he had been treated differently to others in his situation as evidence d by the conflicting constitutional judgments, without an objective and reasonable justification, contrary to Article 14 of the Convention.

Lastly , the applicant complains that the constitutional jurisdictions had failed to give an effective remedy as required by Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant hindered in the effective exercise of his right to defence during the questioning and the initial stage s 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)?

2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention (see Jalloh v. Germany [GC], no. 54810/00, § 95 , ECHR 2006 ‑ IX )? In particular, did the admission of N and M ’ s statements impair the fairness of the proceedings in question?

3 . Bearing in mind the Maltese context, to what extent can it be said that the committal stage amounts to a determination of a criminal charge? In that context, should the guarantees of impartiality and independence also apply in respect of an inquiring magistrate who is called upon to take investigative steps in a criminal investigation and/or the decision on the applicant ’ s indictment in committal proceedings? Given that the magistrate who presided the committal proceedings in the applicant ’ s case was the same duty magistrate in charge of the in genere inquiry in the same case, was the court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention?

4. In the light of the Constitutional Court ’ s judgments delivered in 2011 and the judgment in the applicant ’ s case, particularly in view of the Constitutional Court ’ s different application of the relevant case-law on the absence of legal assistance, has the applicant suffered a violation of his right to a fair trial before the Constitutional Court in accordance with Article 6 § 1 of the Convention on account of the lack of legal certainty arising from those judgments (see, mutatis mutandis, Beian v. Romania ((no. 1) , no. 30658/05, ECHR 2007 ‑ ... (extracts)? The parties should substantiate their pleadings by providing further pertinent judgments on the matter delivered by the Constitutional Court over the relevant time period.

5. Has the applicant suffered discrimination in the enjoyment of his Convention rights contrary to Article 14 of the Convention read in conjunction with Article 6?