FOURTH SECTION

Application no. 34373/13 Martin DIMECH against Malta lodged on 22 May 2013

STATEMENT OF FACTS

The applicant, Mr Martin Dimech , is a Maltese national, who was born in 1960 and lives in Zejtun . He is represented before the Court by Dr David Camilleri , Dr Franco Debono 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 c ase

By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, t he 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. A t the time , no inferences could be drawn by the trial courts from the silence of the accused at this stage.

2. Criminal proceedings

On 2 May 2009 Mr Dimech was arrested and interrogated in the absence of legal assistance, on suspicion of drug trafficking. He made a statement whereby he admitted to certain facts and denied others. In a nutshell he explaine d that the 800 grams of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed, and that he had known that he would have been given the drugs as a guarantee when he lent the money. He admitted that he hid the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it. He denied, however, that the drug was his and also denied that he ever made use of drugs or sold drugs. H is signed statement also indicated that he had made the statement voluntarily, without threats or promises, that it was the truth and that he did not want to change anything in it.

Subsequently the applicant was arraigned in court and his above-mentioned statement exhibited as evidence against him.

During his criminal proceedings, the applicant requested the Criminal Court to refer his complaint regarding the lack of legal assistance during the investigation and interrogation, to the constitutional jurisdictions. On an unspecified date, the court granted the request and referred the case.

3. Constitutional redress proceedings

The applicant claimed 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 removal of his statement from the acts of the criminal proceedings.

By a judgment of 10 January 2012 the Civil Court (First Hall) in its constitutional competence, opting to take cognisance of the case despite the fact that proceedings were still pending, found a violation of the applicant ’ s right to a fair trial in so far as he had not had access to a lawyer before and during the interrogation and ordered that the Criminal Court take note of this breach in considering all the evidence. It noted that the voluntary nature of the statement together with the caution to remain silent did not suffice to make up for such a failing.

Both the Attorney General and the applicant appealed to the Constitutional Court. By a judgment of 26 April 2013 the Constitutional Court took cognisance of the case and reversed the first-instance judgment. Reiterating its previous findings in other domestic judgments , it noted that the right to legal assistance was not meant to be a formality which, if not respected, gave the accused a means to defend himself . That right served as a guarantee that every statement made by a person during interrogation is made freely, in the knowledge of the right to remain silent, without threats and promises, violence or other abuse. A breach of the right to legal assistance during interrogation occurred when a statement is taken abusively and without the guarantees of legitimacy, and not solely because of the lack of legal assistance. It followed that the sole fact that the applicant had made a statement, including both admissions of guilt and denials, in the absence of a lawyer could not ipso facto bring about a violation of Article 6 of the Convention. In its view, other circumstances such as the particular vulnerability of the individual being questioned, had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial. The Constitutional Court could not agree that Article 6 of the Convention provided for the right to a lawyer without any consideration for the age, maturity and tainted criminal record of the accused, together with the nature of the accusations against him. 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 a guilty person to be let off scott -free because of the absence of a formality lacking any real or grave consequences. The same exceptional and extreme circumstances had been present in other cases decided by the ECHR such as Panovits v. Cyprus (no. 4268/04, 11 December 2008 ) and Płonka v. Poland (no. 20310/02, 31 March 2009 ) and cases decided by the domestic Constitutional Court such as The Police vs Alvin Privitera of 11 April 2011 and The Police vs Esron Pullicino of 12 April 2011 . Even in the Salduz case the Court had held that such a violation only arose if the fairness of the trial was compromised “ Article 6 – especially paragraph 3 thereof – 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 by an initial failure to comply with its provisions ” ( § 50). This, according to the Constitutional Court, was probably the reason why the Grand Chamber had not embraced the more categorical approach suggested by Judge Bratza in his concurring opinion.

It considered that in the present case the applicant had admitted that he had not been pressured into making the statement, and thus there had been nothing illicit and abusive in the taking of such statement. It followed that the element of vulnerability found in the Salduz case was missing. Moreover, it had not been shown that the applicant had suffered any prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial.

In the absence of any such violation, no remedy was required , and nor was there any need for t he court to examine the appeal entered by the applicant.

4. The current status of the criminal proceedings

The applicant ’ s trial by jury was to start on 23 October 2013. It, however, appears that the case was adjourned.

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 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 . ( ... )”

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 traf ficking 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 for 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 du ring 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.

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.

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 , relying on the judgment of Salduz v. Turkey ( [GC], no. 36391/02, ECHR 2008 ) .

Under Article 6 § 1 t he applicant also co mplains about the conflicting C onstitutional Court judgments on the matter delivered by the supreme court of the land, which r u n 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 and subsequent Salduz type cases )?

2. 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.

3. 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?

4. Finally the Government is requested to explain why the law, passed by Parliament in 2002, was only brought into force in 2010.