CASE OF VELLA v. MALTA
Preliminary objection dismissed (Article 35-3 - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
Geoffrey Valenzia;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1939 and lives in Paola. 7. On an unspecified date the applicant was charged with multiple counts of theft (burglaries dating from 1976 to 1983) and/or receiving stolen goods. 8. By a judgment of 26 October 1992 the Court of Magistrates (as a court of criminal judicature) found the applicant guilty of a series of offences of receiving stolen goods, but acquitted him of the theft of those goods, holding that it was clear that he had had nothing to do with the thefts. The court found it curious that the applicant had given a detailed explanation as to the origin of each item, and yet a number of the victims of the thefts had identified the objects as belonging to them. During the investigation stage the applicant had admitted to the police that because of his fascination with antiques, he would purchase items even though he would have been aware that they had been stolen. During the proceedings, other than declaring that such statements were false, the applicant did not contest the statements or explain why he had made them in such detail and precision, and why he eventually showed the police where the items were kept. The police also confirmed that such statements had been made. Moreover, the court observed that, even though the applicant was a coin collector, the fact that he had been found in possession of tools for melting down metals such as silver and of a number of pieces of silver bullion did not favour his credibility. Furthermore, although not all the items stolen had been found in the applicant’s possession, in the court’s view it was curious that all the items found had been connected with specific, well-organised thefts, where it was clear that the robbers knew what they were looking for and were well aware of where they would place the merchandise. Indeed, the court had no doubt that the applicant had been aware of the illicit origins of the items in his possession. It sentenced him to five years’ imprisonment. 9. On 3 November 1992 the applicant appealed on various grounds and complained that he had not been able to prove the origins of all the items because the police had raided his house, seizing all the relevant documents and receipts, which had then gone missing in their custody. 10. By a judgment of 30 October 2001, the Criminal Court of Appeal modified the judgment in part. It affirmed the applicant’s innocence in respect of the theft charges, as there had not been a shred of evidence in that respect, and it reversed the part of the judgment concerning the majority of the remaining charges of receiving stolen goods (see below for detail). It disagreed with the first-instance court’s conclusion that the applicant could not but have been a receiver of stolen goods on the ground that since a number of people had recognised the items they could not all have been lying, and therefore it must have been the applicant who was wrong and was therefore responsible. The Criminal Court of Appeal observed that the applicant was a collector of and dealer in antiques, who appeared to purchase any item of interest without enquiring in detail into its legitimate origins. It appeared, from both the case file and the fact that certain items had been hidden, that the applicant was aware that some items had previously been stolen. However, the appeal court considered that the applicant should not suffer prejudice as a result of his inability to prove the origins of certain items, since this was a result of negligence on the part of the police, who had lost the relevant documentation (and some of the items). Moreover, no inferences could be drawn from the fact that he possessed certain tools, as it was normal for a coin collector to melt down coins which had become worthless. Examining the records of the proceedings, the court concluded that the crime of receiving stolen goods had only been proved in respect of objects of antiquarian value stolen from three specific venues, A., B., and C., (during two burglaries) and found in the applicant’s possession. His sentence was in consequence reduced to a two-year suspended sentence. 11. Pending the criminal proceedings against the applicant, a number of individuals alleging that they owned the items referred to in the list of charges against the applicant (also alleged victims of the relevant thefts) instituted civil proceedings to vindicate their ownership of the items. They requested that the items be returned to them and, where necessary, in the event that they could not be returned, that the applicant be held liable for damages. The relevant decisions on appeal were delivered subsequent to the Criminal Court of Appeal’s judgment finding the applicant innocent of the charges of receiving stolen goods in relation to a majority of the items. 12. Proceedings were instituted against the applicant on 4 May 1997 in relation to items stolen in 1983 from venue P. The items had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith. 13. By a judgment of 26 January 2001, having heard the parties’ addresses and having assessed the evidence, the Civil Court found that the claimants were the owners of the items at issue in the case (except for five items, the ownership of which had been claimed by other third parties). Costs were to be divided accordingly. The court found, however, without prejudice to any further action, that it would be premature to order the return of the said items. 14. The court observed that the applicant had declared that he did not know the claimant, but that she had recognised the applicant as a person who had gate-crashed a party she had once given at venue P. Moreover, G., a police officer, had testified that during the criminal investigations the applicant had admitted that “a number of items seized by the police had not been purchased honestly (bis-sewwa)”. Thus, contrary to the applicant’s testimony, it could be inferred that certain objects had not come into the applicant’s possession by proper means. Although the court was convinced that the applicant had been involved in the antiques trade for a number of years, he had not been able to put forward any evidence in relation to the items at issue or any detail as to his trade. By contrast, the claimants had identified as theirs the items which had previously been stolen. The court thus, having to choose between the two versions, opted for that of the claimants. The court considered that the fact that numerous people had been to the police station and identified various objects of which they claimed to be the owners and which had been seized from the applicant’s house was enough evidence to discredit the applicant’s testimony. 15. By a judgment of 16 April 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. From the evidence submitted it appeared that the claimants had suffered two burglaries at venue P. and that the police had seized some of the stolen items from the applicant, amongst many other items identified by various third parties as theirs. While the applicant was able to show that he had been a collector since his youth, he had not managed to prove ownership of the relevant items. As to their origin, he vaguely mentioned names of individuals, some of whom were deceased. He referred to receipts which were currently with the police and which could not be exhibited to the court. The applicant submitted declarations by individuals with whom he had traded. As to his trading, however, it appeared that the applicant had not hesitated to purchase items with dubious or suspicious, if not illicit, origins. Indeed, the applicant had been investigated and various items found in his possession had been seized. The origins of the items gave rise to more than a simple suspicion that they had not been acquired legitimately. According to police officer G., the applicant had even admitted this. During the criminal proceedings G. had been asked whether the applicant had admitted to the theft and the police officer had replied “yes”. G. further stated that the applicant had referred to the dishonest purchase of a sofa (“Dan mhux bis-sewwa”) and had only shown receipts in respect of certain items in connection with which the applicant had been charged, but not all of them. In that light, the court was not satisfied that the applicant had submitted sufficient proof to show that he was the owner of the said items. Moreover, the fact that numerous people, apart from the applicant, had claimed to be the owners of the items did not suffice to support the view that the applicant was the owner. 16. Proceedings were instituted against the applicant on 26 May 1994 in relation to items stolen in 1983 from venue BC, which had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners of the items and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith. 17. By a judgment of 29 January 2001 the Civil Court found in favour of the claimants. It held, however, without prejudice to any further action, that an order for the return of the said items would be premature. 18. The Civil Court noted that there was a certain disagreement in respect of the list of objects identified by the original claimant (the deceased ancestor of the current claimants), in that certain items had been added later. However, the claimant had produced a number of witnesses who had confirmed his declarations as to which items had been stolen. The applicant declared under oath that all the items referred to by the claimants, as well as all the other items seized, were owned by him, as he had bought them over the years. In his testimony he gave the names of people from whom he had purchased each item. He also submitted a receipt dated 1983, the year of the burglary, which indicated that he had bought a number of objects for the sum of 8,800 Maltese liri (MTL, approximately 20,500 euros (EUR)) from a certain S.A. Nevertheless, the court considered the claimants’ version to be more reliable, as it was corroborated by photos and other witnesses. Moreover, police officer G. had testified that the applicant had stated that various items seized from his house “had not been purchased honestly” and this could not but weaken the applicant’s testimony. Therefore the court had no other option but to find in favour of the claimants, at least in respect of those items that were not being claimed by other third persons. 19. By a judgment of 16 April 2004, the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. It considered that the Civil Court had properly assessed the evidence and delivered a reasoned judgment. In any case, the Court of Appeal considered that the applicant had not provided a reliable explanation in respect of the origin and purchase of the relevant items. Indeed, during the criminal proceedings G. had testified, inter alia, that “at no time had the applicant stated that he had stolen the items from here or there, but he had mentioned that he had bought certain items from T., and that he knew about their dubious origins (kienu ġejjin bil-ħazin)”. The Court of Appeal considered that had the Civil Court based its decision solely on that testimony and stopped there, the relevant burden of proof might not have been satisfied. However, all the evidence advanced indicated the probability that the relevant items belonged to the claimant’s heirs – they had been stolen from venue BC, and had been identified by the claimants, even though third parties had also claimed ownership of some of the items. Although the applicant had testified under oath that he had purchased the items legally, his testimony had not been consistent and had lacked veracity. In particular, he had given the impression that he was a trader in antiques and that he had traded with various lawyers, but when questioned in respect of each of them, it transpired that he had not bought any of the items relevant to the case. The other people mentioned by the applicant were deceased and could not testify. Neither could the applicant submit receipts for those purchases, giving as the reason for this that they had been seized by the police and were being held as evidence in the criminal proceedings against him. Even if that were so, the applicant had not provided proof. By contrast, the claimants had submitted photographs of the relevant items taken before they had been stolen. 20. Proceedings were instituted against the applicant on 4 September 1992 in relation to items stolen from venue B. (including items allegedly transformed into silver bullion), which had been found in his possession and seized by the police. All were items in relation to which the applicant had eventually been acquitted of theft but found guilty of receiving stolen goods. The claimants requested that the applicant be found responsible for the theft or receiving of the stolen goods and therefore liable for damages. They asked the court to quantify such damages and to order the applicant to pay them. The applicant argued that he had acquired the items in accordance with the law and in good faith. 21. By a judgment of 22 June 2001 the court found that the claimants were the owners of the relevant items, ordered the applicant to return the said items, and held the applicant liable for damages for holding the relevant items in bad faith. 22. The court noted the expert evidence, which found that there was sufficient proof that the items were owned by the claimants. Indeed, the applicant had not denied that the items could have been previously owned by the claimants. During the criminal investigations the applicant had admitted that he had previously purchased stolen items. The declarations used in the criminal proceedings were exhibited before the court and the applicant only contended that police officer G. had invented certain things. Having re-read the witness statements, the experts took the view that the applicant rarely acquired items lawfully and in good faith. He actually was perfectly well aware of their dubious origins, as he was told by the sellers that the items had been stolen. This could not be ignored, especially as the applicant never stated that he had sale receipts for the relevant items. The items were found in his possession, he did not remember from whom he had bought them and he had no receipts. In consequence, it could not be said that he had purchased them in good faith. The court held that the applicant’s statements used in the criminal proceedings were admissible evidence (Article 632 (1) of the Code of Organisation and Criminal Procedure (“the COCP” – see Relevant Domestic Law below)). Officer G. presented five statements made by the applicant during the investigation, and the applicant explained which parts of those statements he agreed with and which parts he contested. The court considered that in doing so the applicant was picking and choosing, and yet there existed contradictions. For example, in one statement the applicant said that he had purchased two chalices from a taxi driver, and he subsequently confirmed that statement. In another statement he repeated this in more detail and subsequently stated that he had never made such a statement. At a later date he repeated the story, but differently, saying that he had bought more items. The court noted that the taxi driver had not been called as a witness to corroborate the applicant’s version. While the applicant stated that he had purchased the items from various persons, only one of those persons had been called as a witness and the latter only testified to the effect that the applicant had an interest in antiques. Another witness confirmed that the applicant was also a moneylender. Indeed, the applicant submitted a number of documents in evidence of this, but did not submit any evidence in relation to the origins of the items at issue. The court therefore concluded from the totality of the evidence that the claimants had been burgled, that they had identified the stolen items, and that the applicant had not proved that he had acquired the items in good faith. The court found it of particular relevance that in one of the applicant’s statements, which he did not contradict, he had said “when I see an antique, whatever it may be ... I go blind. I want it for myself in order to be able to take pleasure in looking at it”. Thus, the court considered that any other comment would be superfluous. The court found in the applicant the very image of a receiver of stolen goods (ricettatur). 23. As to the claim for damages, the court accepted and shared the expert’s conclusions: as had emerged from the evidence, not all the stolen items were found in the applicant’s possession, but a quantity of silver bullion was found which the claimants argued was the product of melted-down silver statues which had been stolen from them. Indeed, it had been shown that the bullion seized from the applicant was home-made and not pure. Thus, although there was no proof that the applicant had stolen the items, there was sufficient proof to hold that the claimants were indeed the owners of the relevant items, that those items had been in the applicant’s possession in bad faith and that the applicant had previously melted down silver. Indeed, both the bullion and the tools for making it had been found in his possession. The applicant gave an explanation about the bullion, but it was not corroborated by any witness statement. The applicant gave no credible explanation for the clearly home-made bullion. It was therefore very probable that objects stolen from the claimants and acquired in bad faith had, together with other items, been melted down to hide their identity. The court further highlighted, of its own accord, the absence of corroboration as regards the bullion, and the presence of tools used to melt down silver. Thus, the claimants’ case had been made out on the balance of probabilities. The applicant was therefore liable for damages because he had been in possession of stolen goods and because of the damage he had caused by melting down such items. The amount of damages was fixed at MTL 64,870 (approximately EUR 151,100). 24. The applicant appealed, arguing, inter alia, that the legal expert whose conclusions had been endorsed by the court had relied on evidence (the applicant’s statements during the criminal investigation) which should not be given any weight in civil proceedings, and that the first-instance court had erred in finding him guilty in respect of items which were never found by the police, referring to the items that had allegedly been melted down. 25. By a judgment of 9 November 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment (in so far as relevant). It held, however, that the applicant could not be ordered to return items which were no longer in his possession. It further considered that Article 632 (1) of the COCP (see Relevant Domestic Law below) applied to the statements made by the applicant during the criminal investigation, even though they had not been signed by him. It sufficed that officer G. had witnessed those statements being made by the applicant for them to be admissible in evidence. It was for the first-instance court to assess them and reach its conclusions. Moreover, Article 6 of the Criminal Code (see Relevant Domestic Law below) did not imply that evidence used in criminal proceedings could not be used in analogous civil proceedings. Furthermore, the applicant had not objected to the use of that evidence before the firstinstance court. Having examined in detail the evidence produced, the Court of Appeal further considered that the first-instance court had not made an incorrect assessment and that it would therefore not interfere with its finding. It found it pertinent to point out that the fact that only eleven silver bars had been found in the applicant’s possession, despite the fact that the items melted down should have amounted to many more bars, was not a thesis favourable to the applicant. Indeed, the applicant could easily have disposed of the other bars resulting from the melted-down items before the police found the bars. He was, thus, responsible for the damage caused by the melting down of the items, in accordance with the estimates provided by the expert. Any difficulties in evaluating the original items were of the applicant’s own making, as it had been his choice to melt them down. 26. On 22 January 2008 the applicant instituted constitutional redress proceedings, complaining that the three judgments of the Court of Appeal (civil jurisdiction) referred to above and another still pending set of proceedings had violated, inter alia, his right to be presumed innocent. 27. By a judgment of 29 September 2009, the Civil Court (First Hall), in its constitutional jurisdiction, rejected claims lodged by the applicant. In the context of the applicant’s various complaints, it held that the civil proceedings against the applicant had not amounted to a repetition of the criminal proceedings, as the intention of the civil proceedings had not been to find whether the applicant was guilty of any charge, but solely to secure the return of the property to its owners and, where that was not possible, to determine the level of compensation due. Moreover, the different proceedings were not comparable in relation to the burden of proof required. Indeed, each of the proceedings was capable of resulting in different findings of responsibility, including findings which conflicted with each other. The court noted that in the civil proceedings the applicant had not been found guilty of any crime. The civil courts had assessed the evidence in relation to the complainants’ ownership rights to the property against the applicant’s explanation as to how the items had been found in his possession, within the relevant parameters of civil proceedings of that nature. Considering the applicant’s complaint under Article 6 § 2 of the Convention, it held that the provision could not be applicable, since the applicant was no longer accused of a criminal offence, and his complaints were directed against civil proceedings which, save for one, had also been concluded. At a later stage, in relation to Article 6 § 2, the court also considered that the conclusions reached by the civil courts were based on a proper assessment of evidence which did not violate the applicant’s presumption of innocence. Those conclusions were based on the principle of juxta allegata et probata (delivering a judgment on the basis of what has been alleged and proved), as expected in this type of proceedings. The court considered that the applicant’s case could not be compared to any of the cases cited by him under Article 6 § 2 concerning the request of acquitted applicants for compensation for detention, and therefore the principles enunciated therein did not apply. 28. By a judgment of 25 May 2010, the Constitutional Court rejected an appeal lodged by the applicant and upheld the first-instance judgment. It considered that there had been no breach of the applicant’s rights since criminal and civil proceedings were separate and distinct: one was brought by the State, had a specific set of rules and aimed at the imposition of a punishment, whereas the other was brought by an interested individual for the restitution of his or her property rights. During criminal proceedings various rules played in favour of the accused, who might be found innocent simply because there was not sufficient evidence. This should not deny any third party the possibility of access to court to obtain relevant redress on the basis of a different burden of proof. The applicant had been cleared of all charges except those of receiving certain goods stolen from certain properties. However, that did not mean that the items in question, found in the applicant’s possession, were his own. The civil proceedings instituted by individuals claiming certain items against the possessor were independent of the defendant’s good or bad faith. The Court of Appeal had in each case found for the claimants, after considering that the latter had proved that they were the owners of the stolen items and that the applicant had not proved his ownership. The cases had dealt solely with the establishment of the ownership of the items, and nothing more, and if the outcome was that the items were not his own, then he was bound to give them back to their rightful owners, regardless of how they came to be in his possession.