Information Note on the Court’s case-law 192

January 2016

Borg v. Malta - 37537/13

Judgment 12.1.2016 [Section IV]

Article 6

Constitutional proceedings

Article 6-1

Fair hearing

Conflicting Constitutional judgments concerning the Court’s Salduz case-law: no violation

Article 6-3-c

Defence through legal assistance

Domestic law not providing for legal assistance during pre-trial investigations: violation

Facts – Bef ore 2010 Maltese law did not provide for legal assistance during pre-trial investigations and questioning. However, before being questioned suspects had to be informed of their right to remain silent and that anything they said could be used in evidence ag ainst them. No inferences could be drawn by the trial courts from the silence of the accused at that stage.

In 2003 the applicant was arrested on suspicion of importing and trafficking drugs. During questioning in the absence of a lawyer and after being cautioned about his right to remain silent, he gave a statement to the police, which he refused to sign. In th e subsequent criminal proceedings the statement was used in evidence against him. In 2008 he was found guilty as charged and sentenced to twenty-one years’ imprisonment. In 2013 the Constitutional Court dismissed the applicant’s appeal. In the meantime, th e applicant also filed a constitutional redress complaint claiming that, in violation of Article 6 § 3 read in conjunction with Article 6 § 1 of the Convention, his fair-trial rights had been violated as he had not had legal assistance during the pre-trial investigation, contrary to the Grand Chamber’s findings in Salduz v. Turkey (36391/02, 27 November 2008, Information Note 113 ), and that he had suffered a violation of Article 6 § 1 as a result of c onflicting constitutional judgments concerning the application of the Salduz case-law. This claim was also rejected.

Law – Article 6 § 3 (c) in conjunction with Article 6 § 1: The Court had already found a number of violations of the provisions at issue in different jurisdictions arising from the fact that domestic law did not provide for legal assistance while in police cu stody. In the present case, no reliance could be placed on the assertion that the applicant had been reminded of his right to remain silent; indeed, it was not disputed that he had not waived the right to be assisted by a lawyer at that stage of the procee dings, a right which was not available in the domestic law. It followed that the applicant had been denied the right to legal assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons. This state of affairs f ell short of the requirements of Article 6, in particular that the right to the assistance of a lawyer at the initial stages of police interrogation should only be subject to restrictions if there were compelling reasons.

Conclusion : violation (unanimously ).

Article 6 § 1: The difference among the domestic constitutional judgments concerning the Salduz case-law resided not in the factual situations examined by the domestic courts but in the application of the law based on the case-law of the Court. In this connection, the Court noted that, while the Maltese Constitutional Court had originally followed the Salduz judgment strictly, from 2012 onwards it had “restricted” its interpretation of that judgment, with the consequence that a number of persons who were subject to the systemic ban in Malta, and who therefore were not assisted by a lawyer when they made their statements, did not have the benefit of favourable judgments remedying their situation. This interpretation appeared to have remained the practice t hereafter.

The applicant’s case did not therefore concern divergent approaches by the Constitutional Court which could create jurisprudential uncertainty, depriving him of the benefits arising from the law. On the contrary, it constituted a reversal of cas e-law which, in the absence of arbitrariness, fell within the discretionary powers of the domestic courts, notably in countries which had a system of written law and which were not bound by precedent. Therefore, no issue arose in respect of Article 6 § 1 a s regards the notion of legal certainty.

Conclusion : no violation (six votes to one).

Article 41: EUR 2,500 in respect of non-pecuniary damage.

(See also the Factsheet on Police arr est and assistance of a lawyer )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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