FENECH AND AGIUS v. MALTA
Inadmissible
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
The applicant in the first case, Mr Tyrone Fenech, is a Maltese national, who was born in 1985 and lives in Birgu. The applicant in the second case, Ms Amanda Agius, is a Maltese national, who was born in 1985 and lives in Fgura. The applicants were represented before the Court by Dr D. Camilleri, a lawyer practising in Valletta. The Government were represented by their Agent, Dr P. Grech, Attorney General. The facts of the case may be summarised as follows. On 10 February 2004 the first applicant (who was nineteen years old at the time) was arrested and interrogated on suspicion of trafficking ecstasy (a drug which is regulated by the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta). During the interrogation, at which no lawyer was present, he gave a statement admitting to selling about two hundred ecstasy pills and to using ecstasy and cannabis. On 12 February 2004 he gave another statement on oath before a magistrate, whereby he confirmed the contents of his previous statement and implicated some other individuals. The latter statement was given at the police headquarters shortly after he had been released, but it is unclear whether he was re-arrested and taken to the headquarters for further investigation, or whether he was asked to attend the police headquarters for further questioning by the inquiring magistrate. On 10 February 2004 the second applicant (who was eighteen years old at the time) was arrested and interrogated on suspicion of trafficking and possession of ecstasy. During the interrogation, at which no lawyer was present, she gave a statement admitting to her involvement in the crime. She declared that she had been using ecstasy for nearly a year, that she smoked cannabis, and that she had helped Mr Fenech to sell about ten ecstasy pills for 5 Maltese liri (MTL) each. On 12 February 2004 she gave another statement on oath before a magistrate, whereby she confirmed the contents of her previous statement. From the documents provided it is not possible to determine the time of this interrogation or whether the applicant was under arrest. Subsequently the applicants were arraigned in the Court of Magistrates (as a court of criminal judicature) and their above-mentioned statements were exhibited as evidence against them. On 1 December 2009 during the criminal proceedings, the applicants requested the court to make a referral to the constitutional jurisdictions regarding complaints they had concerning the lack of legal assistance afforded to them during investigation and interrogation. By a decision of 11 June 2009, the court granted the request and referred the case. The applicants alleged a breach of their right to a fair trial (Article 6 of the Convention) on account of the lack of legal assistance. They requested that their statements - both those made to the police and those made to the magistrate - be excluded from the prosecution’s evidence. By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the first applicant’s right to a fair trial, in so far as he had not had access to a lawyer before and during the police interrogation which led to his statement of 10 February 2004. The same applied in respect of his statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against him. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. Since it was not clear whether the applicant was under arrest on 12 February 2004, it was therefore for that court to decide that matter. On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, and in the light of the criminal courts’ referral, it found that the first applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him. It considered that the right to legal assistance was not a formality which the accused could use as a further means of defence if not respected. The right served to ensure that statements are made freely, with the knowledge of the right to remain silent, without threats and promises, violence or abuse. A breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. There existed no right for accused persons to be found not guilty. The role of the lawyer was to ensure that the statement was taken legitimately and not to give advice as to how to hide the truth or make a limited or selective declaration. The law aimed to establish the truth and to ensure that no false statements are obtained by abuse. Fundamental rights were meant to promote the dignity of the individual, a matter which surely would not be protected by giving rights which distort or hide the truth at the expense of the proper administration of justice. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned. In the present case the applicant was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law. For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings. By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found a violation of the second applicant’s right to a fair trial, in so far as she had not had access to a lawyer before and during the interrogation which led to her incriminating statement being used by the prosecution as a crucial piece of evidence. The same applied in respect of a further statement she made under oath before a magistrate, if made while under arrest (that is, while in police custody), since Strasbourg case-law did not make such a distinction. It ordered that any statements made by the applicant while under arrest should not be used in the criminal proceedings against her. It was for the Court of Magistrates (as a court of criminal judicature), before which the case was pending, to make an order as to what was to be done with those statements in accordance with this decision. In particular, it was not clear whether the applicant was under arrest or had already been released on 12 February 2004; it was therefore for that court to decide that matter. On appeal, by a judgment of 22 February 2013, the Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, also in the light of the criminal courts’ referral, it found that the second applicant’s right to a fair trial had been breached only in relation to the statement given to the police, but not in respect of the statement given before a magistrate, which could thus be admitted as evidence in the criminal proceedings against her. It reiterated the considerations it had made in the above mentioned judgment in respect of the first applicant, Mr Fenech. The criminal proceedings against the applicants are still pending before the Court of Magistrates (as a court of criminal judicature), which has suspended the case pending the outcome of the proceedings before this Court. The relevant domestic law concerning the case is to be found in Dimech v. Malta (no. 34373/13, §§ 24-25, 2 April 2015).