CASE OF DIMECH v. MALTA
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
7. The applicant was born in 1960 and lives in Zejtun. 8. By Act III of 2002 the Maltese Parliament introduced the right to legal assistance at the pre-trial stage. However, the law only came into force in 2010 by means of Legal Notice 35 of 2010. Prior to this Legal Notice Maltese law did not provide for legal assistance during the pre-trial investigation and specifically during questioning, whether by the police or by a magistrate in his investigative role. Before questioning, however, suspects would be cautioned, that is, informed of their right to remain silent and that anything they said could be taken down and produced as evidence. At the time, no inferences could be drawn by the trial courts from the silence of the accused at this stage. 9. Statements taken by the police could be confirmed on oath before the Court of Magistrates, in which case the person was entitled to be assisted by a lawyer. 10. On 30 April 2009 the Executive Police were authorised by the duty Magistrate to execute a search and arrest warrant relative to residence F. 11. On 1 May 2009 the search was carried out and it yielded the discovery of five bags of heroin (925.26 grams, 35 % purity), 755 euros (EUR) in two separate bundles, electrical weighing scales and a number of plastic bags with the corners missing. 12. On 2 May 2009 Mr Dimech was arrested and, after being cautioned about his right to remain silent, was questioned in the absence of legal assistance on suspicion of drug trafficking. He made a statement in which he admitted to certain facts but denied others. In a nutshell he explained that the 800 grams of heroin found in his possession during a search at his house were being kept as a guarantee against a sum of money he was owed, and that he had known that he would be given the drug as a guarantee when he lent the money. He admitted that he had hidden the drug in his fridge and stated that his partner had had nothing to do with it and was unaware of it. He denied, however, that the drugs were his and also denied that he ever used or sold drugs. His signed statement also indicated that he had made the statement voluntarily, without threats or promises, that it was the truth and that he did not want to change anything in it. 13. A magisterial inquiry (under Maltese law known as an inquiry relating to the in genere) was held on 13 May 2009 and the Inquiring Magistrate drew up the procès verbal. On 20 May 2009 the applicant was arraigned in court and the procès verbal as well as his statement referred to above were produced as evidence against him. During the committal proceedings the Court of Magistrates as a Court of Criminal Inquiry also collected further evidence including witness testimony and documentary evidence. 14. On 8 July 2010 a bill of indictment was issued against the applicant by the Attorney General. 15. During the criminal proceedings the applicant requested the Criminal Court to refer his complaint regarding the lack of legal assistance during the investigation and questioning to the constitutional jurisdictions. On an unspecified date the court granted the request and referred the case. 16. The applicant claimed a breach of his right to a fair trial on account of the lack of legal assistance during the investigation and questioning. 17. By a judgment of 10 January 2012 the Civil Court (First Hall) in its constitutional competence, opting to take cognisance of the case on the merits despite the fact that the proceedings were still pending, found a violation of the applicant’s right to a fair trial in so far as he had not been assisted by a lawyer when making a statement to the police before he had been charged, and ordered that the Criminal Court take note of this breach in considering all the evidence. It noted that the voluntary nature of the statement, together with the caution as to the right to remain silent, did not suffice to make up for such a failing, when it could not be said what the applicant would have done had he been assisted by a lawyer. 18. Both the Attorney General and the applicant appealed to the Constitutional Court. By a judgment of 26 April 2013 the Constitutional Court took cognisance of the merits of the case despite the fact that the proceedings were still pending, and reversed the first-instance judgment. Reiterating its previous findings in other domestic judgments, it noted that the right to legal assistance was not meant to be a formality which, if not complied with, gave the accused a means to defend himself. That right served as a guarantee that every statement made by a person during questioning was made freely, in full knowledge of the right to remain silent, and without threats or promises, violence or other abuse. A breach of the right to a fair trial as a result of a lack of legal assistance during questioning occurred when a statement was taken abusively and without the guarantees of legitimacy, and not solely because of the lack of legal assistance. It followed that the sole fact that the applicant had made a statement, including both admissions of guilt and denials, in the absence of a lawyer could not ipso facto entail a violation of Article 6 of the Convention. In the Constitutional Court’s view, other circumstances such as the particular vulnerability of the individual being questioned had to exist in order to conclude that the absence of legal assistance breached the right to a fair trial. The Constitutional Court could not agree with the first-instance court that Article 6 of the Convention provided for the right to a lawyer without any consideration of the age, maturity and tainted criminal record of the accused as well as the nature of the accusations against him. A correct interpretation of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) had to be made in the light of the circumstances of that case, where Mr Salduz had indeed been in a vulnerable position when he had made the statement. The ratio of the right was precisely that, and not to allow a guilty person to go scot-free because of the failure to comply with a formality which lacked any real or grave consequences. The same exceptional and extreme circumstances had been present in other cases decided by the ECtHR such as Panovits v. Cyprus (no. 4268/04, 11 December 2008) and Płonka v. Poland (no. 20310/02, 31 March 2009), and cases decided by the domestic Constitutional Court such as The Police vs Alvin Privitera of 11 April 2011 and The Police vs Esron Pullicino of 12 April 2011. Even in the Salduz case the Court had held that such a violation arose only if the fairness of the trial was compromised. The Court had stated in that context that “Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions” (§ 50). This, according to the Constitutional Court, was probably the reason why the Grand Chamber had not embraced the more categorical approach suggested by Judge Bratza in his concurring opinion. 19. The Constitutional Court considered that in the present case the applicant had admitted that he had not been pressured into making the statement, and thus there had been nothing illicit and abusive in the taking of such a statement. It followed that the element of vulnerability found in the Salduz case was missing. Moreover, it had not been shown that the applicant had suffered prejudice as a result of the lack of legal assistance to the extent that there was an objective danger that he would not be given a fair trial. 20. In the absence of any such violation, no remedy was required, nor was there any need for the court to examine the appeal entered by the applicant. 21. The applicant’s trial by jury was due to start on 23 October 2013. 22. On 20 September 2013 the applicant filed an application with the Criminal Court requesting it to suspend the trial by jury on the basis of a new set of constitutional proceedings which he had lodged (alleging a violation of Article 7) and on the basis of the proceedings pending before this Court. 23. On 23 September 2013 the Criminal Court acceded to the request.