CAMILLERI v. MALTA
Inadmissible
Christos Rozakis
The applicant is a Maltese national, born in 1953 and living in Valletta, Malta. He is represented before the Court by Dr J. Herrera and Dr J. Giglio, lawyers practising in Malta. The applicant was charged before the Court of Magistrates with possession of and trafficking in heroin while in prison. The prosecution case relied on a signed statement which one of the prisoners, G.F., made under caution to a police inspector on 30 November 1991 accusing the applicant of having supplied him with drugs in the confines of the prison. G. F. confirmed his statement under oath before an investigating magistrate who came to the prison to interview him on 1 December 1991. G.F. later retracted the incriminating statement in an affidavit sworn in prison before a notary and in the presence of the applicant on 7 January 1992. Part of the affidavit was made in reply to questions put to him by the applicant’s lawyer. At the applicant’s trial G.F. confirmed that he had revoked the statement made to the investigating magistrate. He stated that he was under the influence of drugs at the time and could not reason properly. G.F. was cross-examined as to his statement by the applicant’s counsel. A copy of the impugned statement was produced in court. Counsel for the applicant requested the Court of Magistrates to rule G.F.’s statement inadmissible. The request was rejected. With reference to the provisions of the Criminal Code, the Court of Magistrates decided that G.F.’s statement to the investigating magistrate could be admitted in evidence given that it took the form of a properly drawn up procès verbal containing the deponent’s allegations against the applicant. With respect to G.F.’s testimony in court, the Court of Magistrates found: “[That] the presence of the accused when the affidavit was drawn up indicates that [the applicant] wanted to feel assured that what [G.F.] had previously declared in his absence was going to be revoked by [G.F.] by means of the affidavit. The words of [G.F.’s] companions: ‘What have you done to [the applicant]’ were indicative of what is considered among prison circles as lack of ‘camaraderie’ on the part of [G.F.] who had revealed what was going on in prison. By his testimony in court, by his willingness to revoke his original testimony, [G.F.] continued to reveal that his only interest lay in trying to repair the harm he had caused. He maintains that on the day he made the statement he was not conscious of what he was saying; he said that he did not even remember that he testified before the Inquiring Magistrate and that he was under the influence of pills he was taking. This Court cannot believe him in any way: the testimony which he made before the Inquiring Magistrate was very detailed. A person who is not conscious of what he says, who does not know what he says, would not provide all the details which [G.F.] gave when he testified. The Court can understand [G.F.’s] preoccupation since it is well-known that it is very difficult to testify in the presence of the person who has supplied him with certain illicit drugs regarding some fact. And what had originally prompted him to denounce the [applicant] was the fact that he had gone to hospital and left [G.F.] without heroin.” In its judgment of 7 April 1994 the Court of Magistrates found the applicant guilty as charged and sentenced him to a term of imprisonment of 5 years and a fine of 2000 Maltese Liras. The applicant appealed to the Court of Criminal Appeal. Before the Court of Criminal Appeal the applicant’s counsel contended that G.F. was not a credible witness since he had been found guilty of perjury on two occasions back in 1991 and was barred from giving evidence, as prescribed by the Civil Code. Counsel further asserted that G.F.’s statement to the investigating magistrate should not have been admitted in evidence at the trial on account of the fact that G.F. had testified before the investigating magistrate in the applicant’s absence. In counsel’s submission, and with reference to section 646(1) of the Criminal Code, a witness’ statement must be given orally to the trial court as a condition of its admissibility. On 2 February 1996 the Court of Criminal Appeal dismissed the applicant’s appeal. The court observed that G.F. had in fact appeared before the Court of Magistrates and was cross-examined as to the content of the impugned statement which he had confirmed before the investigating magistrate. The court further observed that G.F.’s evidence was properly ruled admissible since it was a declaration within the meaning of the Dangerous Drugs Act. In addition, the bar on G.F. giving testimony did not extend to the giving of testimony before a court of law including before an investigating magistrate. The applicant appealed to the First Hall of the Civil Court, which rejected his appeal in a judgment dated 27 June 1997. According to the First Hall of the Civil Court, and with reference to Convention case-law, the criminal proceedings against the applicant and in the way in which the testimony of G.F. were given were fair. The applicant subsequently appealed to the Constitutional Court, arguing that his right to be present throughout the whole of the criminal proceedings against him had been violated on account of his absence at the time when G.F. deposed before the investigating magistrate. Counsel for the applicant referred the court to Article 39 of the Maltese Constitution and to the case-law pertaining to the Strasbourg’s Court’s interpretation of Article 6 of the Convention. In its judgment of 31 May 1999 the Constitutional Court dismissed the applicant’s appeal. The court ruled that G.F.’s statement to the investigating magistrate had been legally obtained and was admissible in evidence against the applicant. Moreover, G.F. had appeared before the trial judge and his evidence was open to challenge by the defence. The Court of Magistrates properly exercised its discretion to admit G.F.’s statement in evidence, it being noted that the court had weighed in the balance the fact that G.F. has retracted the incriminating statement before a notary. In the opinion of the Constitutional Court: “It is not within [its] competence to interfere in the appreciation of the evidence as long as it is satisfied that the proceedings were carried out correctly and that they respected the principle of ‘equality of arms’ and granted [the applicant] the right to an ‘adversarial trial’ during which , at every moment, prosecution and defence would have every opportunity to control all the evidence produced and the submissions made during the proceedings ... In the case under examination the Court does not perceive anything which might counter its conviction that [the applicant] had every opportunity to verify every piece of evidence adduced against him and in particular to cross-examine the person who had made his depositions elsewhere .... .