Information Note on the Court’s case-law 19

June 2000

Pullicino v. Malta (dec.) - 45441/99

Decision 15.6.2000 [Section II]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Equality of arms

Confiscation of notes taken by the defence during the prosecution’s presentation of its case: inadmissible

Fair hearing

Effect of extensive adverse media reporting on fairness of trial: inadmissible

Fairness of pro ceedings as a whole despite breach of the right to a fair hearing: inadmissible

Impartial tribunal

Judge presiding over trial after having previously revoked bail: inadmissible

The applicant was formerly Chief Police Commissioner. In 1987, the Government ordered the reopening of a criminal investigation into the circumstances surrounding a death which had occurred at police headquarters in 1981, when the Government was in opposit ion. Following the close of the investigation, the applicant was charged with various offences, including wilful homicide. A few days before the trial, the applicant's bail was revoked on the ground that he had approached a prosecution witness in an attemp t to influence him. The trial attracted intense and sustained media coverage and political comment. The trial judge was the same one who had revoked the applicant's bail. He gave leave to the prosecution to call the witness who had testified at the bail re vocation proceedings and ordered confiscation of extensive notes which the applicant had taken during the presentation of the case for the prosecution. The applicant was represented by counsel throughout the whole of the proceedings. In his summing-up to t he jury, the trial judge emphasised that the jurors should not let themselves be influenced by extraneous matters. After deliberating, the jury found the applicant not guilty of wilful homicide but guilty of being an accomplice to the crime of causing grie vous bodily harm resulting in death. He was sentenced to 15 years' imprisonment. The Court of Criminal Appeal, while recognising that confiscation of a defendant's notes was illegal, found that there had been no miscarriage of justice. It considered that t he balance between the applicant’s right to a fair trial and press freedom had not been disturbed to a point where the press coverage would have had a negative influence on the jury’s verdict. Finally, the court ruled that it was no longer open to the appl icant to raise the issue of the trial judge’s impartiality on appeal. Thus, the court upheld the conviction and sentence. Further appeals to the First Hall of the Civil Court and to the Constitutional Court were unsuccessful. The latter found that the righ t to a fair trial had been breached as a result of the confiscation but that the proceedings as a whole had been fair.

Inadmissible under Article 6 § 1 (confiscation of the notes) - The participation of an accused in his criminal trial includes the right t o compile notes in order to facilitate the conduct of his defence, irrespective of whether he is represented by counsel. In the present case, the Court of Criminal Appeal roundly criticised the decision to confiscate the applicant’s reference materials and the Constitutional Court ruled that the applicant’s right to a fair hearing before the trial court had been breached from the standpoint of both domestic constitutional law and Convention law. As to whether the defect in the original trial was rectified o n appeal, the Court of Criminal Appeal delivered a lengthy judgment in which it found that there was in any case a sufficiently strong case against the applicant. The Constitutional Court, applying the correct Convention test, looked at the fairness of the proceedings as a whole and concluded that the irregularity at first instance had not prejudiced his right to a fair trial. Moreover, any disadvantage the applicant may have suffered was offset by the fact that he was effectively represented throughout the proceedings by experienced counsel. Overall, the proceedings afforded him a fair and effective opportunity to present his defence in an adversarial procedure and respected the principle of equality of arms: manifestly ill-founded.

Inadmissible under Article 6 § 1 (impartiality of trial judge) - The issue determined in the bail revocation proceedings was entirely distinct from the question of the applicant’s guilt or innocence: the determination of that question lay ultimately in the hands of th e jurors and the judge’s summing-up to them was in no way unfair to the defence. As to the decision to give leave to the prosecution to call the witness who had testified in the bail revocation proceedings, the trial judge’s decision on the issue cannot be construed as a measure which was intentionally hostile to the defence: firstly, the applicant did not impugn the judge’s subjective impartiality in his conduct of the trial and secondly the defence had every opportunity to discredit the evidence of these witnesses before the jury. Although the applicant’s lawyer challenged the judge’s participation only on appeal, the courts of appeal reviewed the merits of the complaint and ruled that it was unfounded: manifestly ill-founded.

Inadmissible under Article 6 § 1 (adverse media reporting and other statements) - Journalists’ comments on pending criminal proceedings should not extend to statements which are likely to prejudice, intentionally or not, an accused’s chances of receiving a fair trial or to undermine t he confidence of the public in the role of the courts in the administration of criminal justice. In this case, the applicant’s trial ensued from events which were a matter of intense and divisive political debate and it could not be expected that the trial itself would be conducted with any degree of serenity. Domestic courts were attentive to the possible risks caused to the fairness of the trial by prejudicial comment in the media and took steps to ensure that a balance was struck between press freedom an d the applicant’s right to a fair trial. Moreover, the direction which the trial judge gave to the jury could be considered as a safeguard against the possible intrusion of extraneous and biased reporting into the jury’s own assessment of the issues raised by the trial. Further, the applicant did not make out a case that there was a media campaign against him of such virulence as to sway the outcome the jurors’ deliberations. Significantly, the applicant was in any case acquitted of the principal charge aga inst him, wilful homicide: manifestly ill-founded.

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

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