ELLUL v. MALTA
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Godfrey Ellul, is a Maltese national who was born in 1948 and is currently detained in the Corradino Correctional Facility, Malta. He was represented before the Court by Mr J. Brincat, a lawyer practising in Malta. On an unspecified date, following a police raid, a quantity of drugs, sealed in various small sachets, together with other equipment related to drug use were found. The applicant, an individual, “X”, and another person were present in the raided premises. The applicant attempted to flee. On an unspecified date the applicant was questioned by the police and cautioned and informed about his right to remain silent. On a later date he was visited by a magistrate in order to give evidence as a witness against X. Again the applicant was cautioned and informed about his right to remain silent. In both instances, the applicant, in the absence of a lawyer, availed himself of this right. The applicant was eventually charged with conspiring with others to deal in drugs, possession of drugs with intent to traffic and simple possession. X, was charged with the same offences. The prosecutor, who had the right by law to decide by which court an accused was to be tried, decided to try X before the Court of Magistrates and the applicant before the Criminal Court. That decision, which could not be challenged, had an effect on the range of punishment applicable, in that before the Criminal Court the minimum and maximum punishments were higher. On an unspecified date the applicant’s trial by jury commenced. Witness statements were heard, X and the applicant giving their versions of events. The applicant told the jury that his presence in the house was entirely innocent. He had given a third person a lift to the house to borrow money from one of the occupants. He waited outside for some time, and only then did he knock. He entered the house only at the invitation of the person to whom he had given the lift. On the contrary, X, in his testimony, told the jurors that the applicant and the third person entered the house together. Other items of evidence produced in court consisted of photographic evidence, cash and illegal substances and items related to drug use found on the premises. A pharmacist’s report confirmed that the substance found stored in separate sachets was heroin. At the end of the proceedings the judge addressed the jurors, explaining their role, the law, the burden of proof, the evaluation of evidence and when inferences could be drawn from silence. He stressed that no such inferences could be drawn in the circumstances of the present case. He further noted, inter alia, that they had to examine why the applicant had kept silent when previously questioned and whether he could be deemed to be credible now that he had opted to give evidence during the trial. The impugned paragraphs mentioned during the three-hour address read as follows (unofficial translation): “The issue of credibility, namely whether you believe his [the applicant’s] version, or part of it, whether you will disregard parts of it or all of it because it has not been proved to the degree required, in which case it will be dismissed: the applicant’s lawyer stated that even if you had to ignore his [the applicant’s] testimony, the prosecution has not made out a prima facie case ... this must be given due consideration too, but for a lawyer to say so it must be backed up by arguments as it is easy to say there is no evidence. You must examine the evidence and see whether, notwithstanding what is being argued by the defence, there is not enough evidence in respect of any one of the three charges... ... In the present case where the accused is also a witness in another set of proceedings he also has the right to silence and not to incriminate himself. No inferences can be drawn against the applicant, such as stating that once he is saying this it must be because he was hiding something, otherwise he would have mentioned everything. However, coming to another stage, if after the accused had not given a statement, or if he had given testimony at some stage, as happened in this case, but later decided to remain silent to avoid incriminating himself, he attempts to give an explanation as to why he did not give this version earlier, this explanation is subject to your scrutiny. Meaning that if he here [before the criminal court] says I did not give this version at the start because it was my right not to do so, that is the reason he has submitted. However, you [the jurors] have to tell yourself that it is true, it was his right, but ‘if according to your [the applicant’s] version you [the applicant] had nothing to do with the alleged facts and that you [the applicant] were just called into the creed like Pontius Pilate, had you [the applicant] said this earlier to the police, wouldn’t you [the applicant] have avoided a lot of trouble?’ it is legitimate to put this question to yourselves. If he here [before the criminal court] gives an explanation as to why he did not tell the truth from the start, you [the jurors] have the right to decide whether that explanation was probable and likely to be credible. This is a question for you to decide, without any interference from anyone, but you have the right to do it. If any accused is faced with such a question ...(example question and answer) you have the right to ignore his answer and/or see whether his explanation satisfies you to the required degree. Thus, what you are seeing here is not his right to remain silent, nor the right not to incriminate oneself, but whether he gives an explanation for his silence, or to the change in his version of events. This does not mean that it is so in this case. That is solely something for you as jurors to decide. As judges of fact you have the right to examine this and see whether his explanation satisfies the probability test – is what he is saying probable, or is he saying this because he wants to say something? If it is probable that what he has done, he did for the reasons he is stating, then you have been satisfied ... if it is improbable , you should see why he is saying this now and not earlier or why he had given a different version. ... The inspector further stated that at a certain stage he questioned the accused in hospital, a few weeks after his accident. His statement is before you ... and I have told you that where he has not replied it was his right not to do so and you may not draw any inferences against him when he did not reply. This did not amount to an admission of guilt. However you must also see – at a different stage of the examination of the accused, when he gave testimony here [before this court], if he gave an explanation as to why at the time he had given that version of events, which is not simply that of his right to silence, but another excuse .... And you have the right to scrutinise these reasons he is here giving you and why he did not tell the truth, if the truth was as innocent as he is depicting it now. You have the right to question and to investigate and take a decision as to whether the explanation he is giving now is worth believing or not. That is your right. However, you may not draw inferences against the applicant from the simple fact that during interrogation he remained silent, or failed to reply, or replied to the generic questions but closed like a sea shell when faced with the more fundamental ones. That was his right. If he has explained why he did that, you have the right to analyse that explanation and decide whether to believe it or not, whether it is likely or not, probable or not. This is what you have to analyse. Is his version probable or not? If it is, then you should admit it. If it is not probable it remains to be considered possible... When the applicant gave evidence in the proceedings against X he also had certain rights ... namely to remain silent and not to incriminate himself. This is also a right of the accused and you may not say – what was he hiding when he chose not to reply, would he have incriminated himself? – Do not assume anything. However, when he gives an explanation ... You can ask yourself why he did not give it from the start? You have to see whether his explanation holds water, if it satisfies you to the degree of probability. Why was this explanation not given before to avoid a lot of trouble. Does this explanation hold? It is your right to scrutinise such and to see whether it makes sense to have such a story and not to have told it earlier. His reasons were: that had he said it before he could have got into trouble with his wife, secondly that drug pushers can turn nasty and that if he had mentioned other people’s names he might have risked consequences such as revenge against him. You must therefore see if these excuses were plausible.” ’ imprisonment and a fine of MTL 20,000 (approximately EUR 48,000). On an unspecified date the applicant appealed. He claimed inter alia that there had been a wrong interpretation and application of the law, namely that the jurors (who were aware of the applicant’s previous convictions) had been instructed to accept statements in accordance with their “gut feeling” and had been made to doubt the applicant’s credibility and to suspect that his lawyer did not believe his innocence. Moreover, the judge had breached the applicant’s presumption of innocence by first allowing him this protection and subsequently commenting on it to the jury, insinuating that none of the statements made in court by the applicant could be considered credible since he had not made them at an earlier stage (see quotation above). Moreover, he claimed that the Criminal Court had erred in its assessment of the evidence. On 17 March 2005 the Court of Criminal Appeal upheld the Criminal Court’s judgment in part. It found that the trial judge had correctly addressed the jury instructing them to assess only facts arising out of the charges and proved in the course of the proceedings and not any prior events, or facts they learned of through the media. The expression “gut feeling” had not been appropriate. However, it was probable that the trial judge was referring to a “moral conviction” which the jury had to have in order to find the applicant guilty. This was further confirmed by the ensuing explanation regarding the degree of proof which was required to arrive at a verdict of guilt. As to the issue of credibility, the Court of Appeal did not interpret the wording used by the trial judge as implying any of the matters alleged by the applicant in his appeal. As to the presumption of innocence, it held that the directions to the jury had amounted to a fair explanation of the position in law at that date, namely that no inferences of guilt should be drawn from the accused’ Lastly, the Court of Appeal held that it would only take issue with the trial court’s assessment of the evidence if it were shown that the jury had reached unreasonable conclusions or had based itself on unlawful considerations. However, in view of the imperfections of the directions to the jury, the Court of Appeal went on to examine the evidence so as to establish whether there had been a miscarriage of justice. Having analysed the evidence before the trial court, including transcripts of witness evidence and the documents exhibited, and having considered the submissions of the parties, the Court of Appeal found that the jury had chosen to believe the co-accused’s version of events and not the applicant’s. It was not for the Court of Appeal to interfere with the decision of the jury, which had had the advantage of seeing and hearing all the witnesses and apprising itself of the background to the case as presented to them. This notwithstanding, the court went on to determine whether the evidence produced sufficed to find the applicant guilty on each charge. It concluded that there had not been enough evidence to find the applicant guilty of the first charge, namely conspiring with others to deal in drugs. It confirmed the previous findings as to the remainder of the charges. It therefore reduced the sentence to nine years’ imprisonment and maintained the fine. On an unspecified date the applicant contested the fairness of these proceedings before the constitutional jurisdictions, invoking inter alia, Articles 6 and 14 of the Convention. On 5 July 2005 the Civil Court (First Hall) found against the applicant. On 27 April 2006 the Constitutional Court rejected the applicant’s appeal. It held that the discretionary power exercised by the prosecutor had not prevented the applicant from having a fair trial in accordance with Article 6 of the Convention. Furthermore, the applicant and X could not be considered as persons in the same situation, and thus no issue arose under Article 14. On an unspecified date the applicant instituted proceedings before the constitutional jurisdictions alleging violation of Article 6 §§ 1 and 2, and Article 2 of Protocol No. 7 to the Convention in respect of his criminal proceedings. He complained that his right to silence had been violated. The fact that the applicant had not made a statement before the trial began had been taken into consideration in assessing his credibility. Moreover, his silence in reply to questions put by a magistrate during an interview while the applicant was in hospital, and after having been warned that proceedings could be taken against him, had also been considered from the standpoint of his credibility. In both instances the applicant had not been assisted by a lawyer. He further complained that his right to be presumed innocent had been breached since the Criminal Court of Appeal declined to interfere with the conclusions reached by the trial court unless they were deemed unreasonable. This was tantamount to an assumption of guilt during the appeal proceedings. Similarly, such reasoning had violated his right of appeal, rendering it ineffective and incompatible with Maltese law and Article 2 of Protocol No. 7 to the Convention. On 16 May 2006 the Civil Court (First Hall) rejected the applicant’s complaints. As to Article 6, having reviewed the procedure followed throughout the proceedings, the court held that the applicant had not been denied a fair trial. It further found that the complaint under Article 2 of Protocol No. 7, regarding the quality of the review by the Court of Appeal, was ill-founded. The appeal court had in effect reviewed the evidence and varied the sentence, finding the applicant guilty of only two of the three brought against him. On 3 November 2006 the Constitutional Court, although objecting to the way the appeal had been submitted, confirmed the first-instance judgment. Section 501 (1) of the Maltese Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, reads as follows: (1) On any appeal against conviction by the person convicted, the Court of Criminal Appeal shall allow the appeal - (a) if it considers that the appellant has been wrongly convicted on the facts of the case; or (b) if it considers that there has been an irregularity during the proceedings, or a wrong interpretation or application of the law, which could have had a bearing on the verdict: Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal under paragraph (b) might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred. Section 22 (2) of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows: “Every person charged with an offence against this Ordinance shall be tried before the Criminal Court or before the Court of Magistrates (Malta) or the Court of Magistrates (Gozo), as the Attorney General may direct, ...” Under that provision, the maximum punishment before the Criminal Court may vary between four years and life imprisonment, whereas that before the Court of Magistrates varies between six months and ten years.