PULLICINO v. MALTA
Inadmissible
Christos Rozakis
The applicant is a Maltese national, born in 1944. He is currently serving a fifteenyear prison sentence in Malta. He is represented before the Court by Professor Ian Refalo, Dr Marse-Ann Farrugia, Dr Joseph Galea Debono and Dr Edward Wood, all lawyers practising in Malta. A. The facts of the case, as submitted by the parties, may be summarised as follows. At the time of the events giving rise to his prosecution and conviction, the applicant was a Commissioner of Police in Malta. In 1987 the Government of the day ordered the re-opening of a criminal inquiry into the circumstances surrounding the death of a suspect at the police headquarters in 1981 which occurred when they were in opposition. In 1989, following the close of the inquiry, the applicant was charged with the following offences arising out of the incident: perjury; wilful homicide; giving false testimony under oath; and three separate charges of subornation of three police witnesses. On 7 February 1991 the Court of Criminal Appeal declared the three charges relating to witness subornation null and void. Before the applicant’s trial opened on 11 January 1993, the applicant, then on bail, appeared before a criminal court charged with having breached the conditions of his bail. On 7 January 1993 the court revoked the applicant’s bail, being satisfied that there was sufficient evidence to prove that the applicant had approached a prosecution witness in circumstances which showed that the intention was to corrupt the latter’s evidence at the forthcoming trial. The court ordered a ban on the publication of these proceedings. According to the applicant the trial opened against the background of intense and sustained media coverage and political discussion. The applicant cites among other incidents the appearance in a newspaper before the jury was empanelled of a report alleging that he had been found guilty of violations of human rights. The editor of the newspaper was subsequently found guilty on 30 June 1993 of contempt of court. The court which convicted the editor considered that the report could have had a negative affect on the jury causing irreparable harm to the applicant. He also points to the fact that a witness who had failed to appear at the bail revocation proceedings was subsequently tried on a perjury charge a couple of days before his own trial with the result that the public learned in press reports dated 8 and 23 January 1993 that his bail had been revoked. The trial commenced on 11 January 1993 and was presided over by the same judge who had earlier ordered the applicant’s bail to be revoked. Following empanelment the judge instructed the jury to disregard anything which they may have heard or read about the case. On 12 February 1993 the prosecution announced at the close of its case that it had no further evidence to present to the court. Among the witnesses called by the prosecution were three persons who had testified against him in the earlier proceedings in which his bail had been revoked. According to the applicant the result was to allow these witnesses to give evidence on the circumstances which led to the revocation of the applicant’s bail thus creating for him a new case to answer. Three police officers also gave evidence against the applicant. Two of these officers who had admitted to beating up the suspect had been granted a presidential pardon to secure their testimony against the applicant. Throughout this phase of the trial the applicant took detailed notes of the case against him in order to facilitate the giving of his own evidence in rebuttal at the appropriate moment. The applicant began his testimony on 15 February 1993. When the morning sitting was adjourned at 1.15 p.m., the prosecution requested the court to disallow the applicant use of his notes. The court upheld the request and ordered the confiscation not only of the notes but also other documentation including legal materials which the applicant had assembled in his place of confinement for the purposes of preparing defence. The afternoon sitting resumed at 3.30 p.m. on 15 February 1993. Before the jury were admitted to the courtroom, the applicant’s counsel informed the presiding judge that the applicant was experiencing difficulty in testifying without the aid of his notes. Submissions were made on this matter by counsel for both sides. The applicant’s counsel insisted that the materials in the case were so voluminous that it would be impossible for any witness to remember everything without the aid of reference materials. The presiding judge decided to postpone a decision on the issue. The applicant resumed his evidence. At 5.15 p.m. the prosecution commenced its cross-examination of the applicant. The cross-examination was later suspended, whereupon the applicant’s counsel again raised the issue of his client’s notes. Both counsel entered minutes in the record of the proceedings setting out their respective views on the matter. At a later stage the presiding judge ruled as follows: “Until such time as the accused concludes his testimony he is precluded from having access to any writing except that indicated in section 583 of the Code of Organisation and Civil Procedure.” The applicant concluded his evidence on 17 February 1993. The following days were taken up with matters such as the hearing of witnesses requested by the jury, the defence speech, the prosecution’s reply, the addresses to the jury and the latter’s deliberations and verdict. In his summing up to the jury the judge gave directions on the relevant law and stressed that it was for the jury to reach its decision on the basis of the facts and without taking into account any extraneous matters. The judge advised the jury that the applicant was to be presumed innocent until proved guilty and it was for the prosecution to prove guilt to the criminal standard of beyond reasonable doubt. He further stressed the need to subject to scrutiny the evidence of those witnesses who had testified in return for a pardon and that the applicant could not be convicted on the sole evidence of an accomplice. On 10 March 1993 the jury, after seven and a half days of deliberations, found the applicant not guilty of the charge of wilful homicide but guilty of being an accomplice to the crime of causing grievous bodily harm resulting in death. According to the applicant he was never charged with the latter offence but was nevertheless found guilty of it. He was found not guilty of the perjury charge but guilty of giving false evidence under oath. However, on the same day the court acquitted him of the perjury charge and declared the related charge to be time-barred. The applicant was sentenced to a term of imprisonment of fifteen years on the charge of being an accomplice to the crime of causing grievous bodily harm resulting in death. On 15 April 1994 the Court of Criminal Appeal confirmed the judgment and sentence of the trial court. Although the court held for the first time that the confiscation of a defendant’s notes at his trial was illegal under Maltese law, it nonetheless found that no miscarriage of justice had taken place at the applicant’s trial having regard to the strength of the evidence against him. As to the applicant’s complaint that the fairness of the trial was impaired on account of the adverse media reporting of the case, the court held that the balance between the applicant’s rights as an accused person and the freedom of the press had not been disturbed to the point where it could be said that the media coverage had a negative influence on the deliberations of the jury and the verdict reached. The court also ruled that the applicant had the opportunity to challenge the presence of the trial judge under domestic law. Since he had failed to do so it was no longer open to him to raise the issue of the judge’s impartiality on appeal. The applicant appealed to the First Hall of the Civil Court contending that he had been denied a fair trial in breach of the guarantees laid down in the Maltese Constitution and the European Convention on Human Rights. On 5 August 1997 his appeal was rejected, the court being of the opinion that the applicant’s complaints whether taken individually or collectively did not substantiate that he had been denied a fair trial. The applicant subsequently appealed to the Constitutional Court, which in its judgment of 18 August 1998 dismissed his appeal. The Constitutional Court acknowledged that the applicant’s right to a fair trial had been breached since the confiscation of his reference materials had seriously disrupted his defence. It stated in this regard that: “... the confiscation of the notes and other books of the applicant and this after he has already started testifying and without a forewarning, certainly hindered the testimony given by him in defence, both from the factual aspect and from the psychological one and this particularly because those notes which were prepared by him to conduct the defence did not necessarily refer to evidence previously given ... ...The Court is therefore of the opinion that in this regard and limited to this grievance, the right of the [applicant] to a fair hearing before the first Court was violated ...” However the Constitutional Court then proceeded to rule that the criminal proceedings, taken as a whole, had been fair. The court noted also that it was relevant that at no time before the Court of Criminal Appeal had the applicant asked to give evidence with the assistance of those materials. In line with the rulings of the appellate courts, the Constitutional Court also found that the applicant had not adduced any concrete proof that the jury or the trial or appeal court judges had been influenced by press coverage of the proceedings or related political statements. It noted, inter alia, that the jury had taken a considerable length of time in reaching a verdict. Furthermore, the court rejected the applicant’s challenge to the impartiality of the trial judge, inter alia, on the ground that he had not raised this matter at the appropriate moment in the trial and had not availed himself of domestic remedies for this purpose. B. Relevant domestic law Section 39 of the Constitution of Malta provides: “… (6) Every person who is charged with a criminal offence – … (b) shall be given adequate time and facilities for the preparation of his defence; …” Sections 506-508 of the Criminal Code provide as relevant: “506. The Court of Criminal Appeal may, if it thinks it necessary or expedient in the interest of justice – … (c) if it thinks fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application, subject to the provisions of section 635. 507. Without prejudice to the generality of the last preceding section, where evidence is tendered to the court under that section, the court shall, unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise its power under that section of receiving it if – (a) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and (b) it is satisfied that it was not adduced at the trial but that there is a reasonable explanation for the failure so to adduce it. 508. (1) Where an appeal against conviction is allowed by reason only of evidence received or available to be received by the Court of Criminal Appeal under sections 506 and 507 or by reason of a point raised under paragraph (b) of subsection (1) of section 501 and in each case it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal as provided by subsection (2) of section 501 or by paragraph (b) of subsection (4) of section 503, order the appellant to be retried.” Section 583 of the Code of Organisation and Civil Procedure reads as follows: “A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case, the writing must be produced and may be seen by the opposite party.