CASE OF DIMECH v. MALTA
(Application no. 34373/13)
2 April 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Dimech v. Malta,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Boštjan M. Zupančič,
Vincent A. De Gaetano,
Aleš Pejchal, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 3 March 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 34373/13) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Martin Dimech (“the applicant”), on 22 May 2013.
2. The applicant was represented by Dr D. Camilleri, Dr F. Debono and Dr J. Gatt, lawyers practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.
3. The applicant alleged that he had been denied a fair trial as a result of the lack of legal assistance at the pre-trial stage.
4. On 22 October 2013 the Government were given notice of the application.
5. On the same day the Court decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1960 and lives in Zejtun.
A. Background to the case
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.
B. Criminal proceedings
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.
C. Constitutional redress proceedings
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.
D. The current status of the criminal proceedings
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal assistance during the pre-trial investigation
24. Legal Notice 35 of 2010 provided for the commencement notice of the Criminal Code (Amendment) Act 2002 (Act III of 2002), which enshrined the right to legal assistance. It read as follows:
“BY VIRTUE of the powers granted by subarticle (2) of article 1 of the Criminal Code (Amendment) Act, 2002, the Minister of Justice and Home Affairs has established the 10th February, 2010 as the date when the provisions of articles 355AT, 355AU, paragraphs (b) and (c) of subarticle (2) and subarticles (3) and (4) of article 355AX, and article 355AZ which are found in article 74 of the Act above mentioned shall come into force.”
25. Pursuant to the above notice, Article 355AT of the Criminal Code, in so far as relevant, now reads as follows:
“(1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle. ...”
B. The European Convention Act
26. Article 4 of the European Convention Act, Chapter 319 of the Laws of Malta, in so far as relevant, reads as follows:
“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.
(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:
Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.
(3) If any proceedings in any court other than the Civil Court, First Hall, or the Constitutional Court any question arises as to the contravention of any of the Human Rights and Fundamental Freedoms, that court shall refer the question to the Civil Court, First Hall, unless in its opinion the raising of the question is merely frivolous or vexatious; and that court shall give its decision on any question referred to it under this subarticle and, subject to the provisions of subarticle (4), the court in which the question arose shall dispose of the question in accordance with that decision.
(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”
C. Domestic case-law
1. Cases decided in 2011
27. In the wake of the new law, a number of accused persons instituted constitutional redress proceedings during the pendency of the criminal proceedings against them or requested the relevant criminal courts to make a referral to the constitutional jurisdictions. In 2011 three cases were decided by the Constitutional Court (in similar yet never identical formations of three judges), namely The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011, and The Police vs Mark Lombardi, also of 12 April 2011. In the three cases the Constitutional Court held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. The relevant details are as follows:
The Police vs Alvin Privitera, Constitutional Court judgment of 11 April 2011, upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.
28. The case concerned the fact that the accused, at the time eighteen years of age, had been questioned in the absence of a lawyer. During questioning he had denied selling heroin to X (who died of an overdose) but had admitted to selling cannabis to him. Subsequently the accused alleged that he had been forced by the investigating official to admit to the accusations. This was the sole evidence which the prosecution had in hand in order to institute proceedings against the applicant for possession and trafficking of drugs.
29. The Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz v. Turkey and the subsequent line of case-law. In particular it noted that, in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 required that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer were used for a conviction. Given that the absence of a lawyer at the investigation stage could irretrievably prejudice the accused’s right, the court considered that where there existed sufficient reasons indicating a violation, it should not wait for the end of the criminal proceedings in order to examine the merits of the case.
30. The Constitutional Court rejected the Government’s plea that the applicant had not raised the issue until the prosecution had finished submitting evidence, noting that in the domestic legal system there was no deadline for raising constitutional claims. It found the Government’s argument that the accused had not been forced to give a statement, and that he had been informed of his right to remain silent, to be irrelevant given the established case-law of the European Court of Human Rights and in particular the Salduz judgment.
31. The right to legal assistance was linked to the right not to incriminate oneself; it allowed a balance to be reached between the rights of the accused and those of the prosecution. The argument that it would otherwise be difficult for the prosecution to reach a conviction could not be taken into consideration for the purposes of this balance. The Constitutional Court further noted that Mr Salduz’s young age had not been the decisive factor for the finding in that case, but merely a further argument. Moreover, it was not necessary in the case at hand to examine whether there existed any compelling reasons to justify the absence of a lawyer during questioning or whether such restrictions prejudiced the case, in so far as at the relevant time Maltese law had not provided for the right to legal assistance at that stage of the investigation and therefore there had been no need for the accused to request it. There had therefore been a systemic restriction on access to a lawyer under the relevant legal provision in force at the time. It followed that there had been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.
32. The Constitutional Court further noted that in its view the right to be assisted by a lawyer must be granted from the very start of the investigation and before the person being investigated gave a statement, but it did not require that an accused be assisted during questioning.
33. The Constitutional Court did not order the statements to be expunged from the record of the proceedings, but it ordered that the Court of Criminal Judicature be informed of the said judgment so that it could decide accordingly on the validity and admissibility of the statement made.
The Police vs Esron Pullicino, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.
34. The circumstances of the case were similar to the case above in so far as the accused had given a statement while in police custody in the absence of a lawyer and this statement was the sole evidence for the prosecution. The accused was, moreover, a minor. The Constitutional Court reiterated the same reasoning applied in the case of Alvin Privitera, cited above, stopping short, however, of reiterating the court’s opinion in relation to assistance during the actual questioning (see paragraph 32 above).
The Police v Mark Lombardi, judgment of 12 April 2011 upholding a first-instance judgment following a referral by the Court of Magistrates as a Court of Criminal Judicature.
35. In this case the accused had made two statements in the absence of a lawyer, in the first denying any connection with possession or trafficking of drugs, and in the second admitting to having taken ecstasy pills (which amounts to possession according to the case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking.
36. The Constitutional Court reiterated the same reasoning applied in the cases of Alvin Privitera and Esron Pullicino, cited above. It further noted case-law subsequent to Salduz in which the Court had found a violation despite the fact that the applicant had remained silent while in police custody (Dayanan v. Turkey, no. 7377/03, 13 October 2009) and despite there being no admission of guilt in the statements given by the applicants (Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009). In Boz v. Turkey (no. 2039/04, 9 February 2010) the Court had stressed that the systemic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6. The Constitutional Court further referred to the finding in Cadder v. Her Majesty’s Advocate  UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter.
37. The Constitutional Court added that Salduz should not apply retroactively to cases which had become res judicata.
2. Subsequent cases
38. Following the above-mentioned judgments of 2011, the Constitutional Court started to consider Salduz as an exceptional case and to interpret it to the effect that a number of factors had to be taken into consideration when assessing whether a breach of Article 6 had occurred (see, for example, Charles Stephen Muscat vs The Attorney General, 8 October 2012; Joseph Bugeja vs The Attorney General, 14 January 2013; The Police vs Tyron Fenech, 22 February 2013; and The Police vs Amanda Agius, also of 22 February 2013, and the Constitutional Court’s reasoning in the applicant’s case). As a result, a number of cases where the accused had not been represented by a lawyer - because the matter was not regulated in Maltese law - were found not to violate the Convention and the Constitution. Nevertheless, in The Republic of Malta vs Alfred Camilleri of 12 November 2012 the Constitutional Court, in the particular circumstances of the case, found a violation of the accused’s fair trial rights, in particular because he had not even been cautioned by the police. However, following a request for retrial which was upheld by a judgment of the Constitutional Court of 31 January 2014, no violation was found in that case because the accused, who had given a statement in the absence of a lawyer, had not been forced to reply to the questions put to him by the police, nor was he particularly vulnerable to the extent that he would have required the assistance of a lawyer. The accused was fifty-five years old and therefore mature. While he had never been to prison or been questioned, he had already been found guilty of minor charges and therefore was acquainted with the law. Lastly, his statement had not been the only evidence, as some police officers had been eyewitnesses to his handling of the drugs in issue.
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION
39. The applicant complained under Article 6 § 3 (c) in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody, relying on the judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008). The relevant provisions read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
40. The Government contested that argument.
A. The Government’s objection that the complaint is premature
41. The Government submitted that the applicant’s complaint was premature as the trial by jury had not yet taken place. It was thus possible that the applicant would not be found guilty, in which case he could not be considered a victim in terms of the Convention (they referred to Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010). The Government contended that examining the applicant’s complaint at this stage would not enable the Court to assess the basis of the applicant’s “conviction”, which had not yet taken place. The Government further noted that the constitutional jurisdictions had not “opted” to take cognisance of the case, but simply could not decline the exercise of jurisdiction given that the applicant’s referral request had been accepted by the Criminal Court.
B. The Court’s assessment
42. The Court accepts the Government’s argument that the constitutional jurisdictions had no choice but to take cognisance of the case according to the functioning of the domestic system. However, the Court notes that those jurisdictions did not take cognisance of the case only to find later that the claim was inadmissible. In fact, the constitutional jurisdictions did not reject the case as being premature despite the fact that the proceedings were still pending. Nor did they reject it for non-exhaustion of ordinary remedies on the ground that the applicant had not asked for a lawyer (admittedly, as established in domestic case-law (see paragraph 31 above), there would have been little point in so doing given the inexistence of such a right in Maltese law at the time). On the contrary, the constitutional jurisdictions took cognisance of the case, opting to examine it on the merits and give judgment accordingly.
43. The Court notes that according to its constant case-law the question whether or not court proceedings satisfy the requirements of Article 6 § 1 of the Convention can only be determined by examining the proceedings as a whole, that is, once they have been concluded. However, the Convention organs have also held that it is not impossible that a particular procedural element could be so decisive that the fairness of the proceedings could be determined at an earlier stage (see, inter alia, X. v. Norway, Commission decision of 4 July 1978, Decisions and Reports (DR) 14, p. 228; Bricmont v. Belgium, 7 July 1989, Series A no. 158; Papadopoulos v. Greece, (dec.), no. 52848/99, 29 November 2001; Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005 and Pace v. Malta (dec.), no. 30651/03, 8 December 2005). At the same time, the Convention organs have also consistently held that such an issue can only be determined by examining the proceedings as a whole, save where an event or particular aspect may have been so significant or important that it amounts to a decisive factor for the overall assessment of the proceedings as a whole - pointing out, however, that even in those cases it is on the basis of the proceedings as a whole that a ruling should be made as to whether there has been a fair hearing of the case (see, inter alia, X v. Switzerland, no. 9000/80, Commission decision of 11 March 1982, DR 28, p. 127; B v. Belgium, Commission decision of 3 October 1990, DR 66, p. 105; Cervero Carillo v. Spain, (dec.), no. 55788/00, 17 May 2001; Mitterrand v. France (dec.) no. 39344/04, 7 November 2006 and more recently, De Villepin v. France (dec.), no. 63249/09, 21 September 2010).
44. The Court observes that it has found a number of violations of the provisions at issue, in different jurisdictions, arising from the fact that an applicant did not have legal assistance while in police custody because it was not possible under the law then in force (see, for example, Salduz, cited above, § 56; Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, §§ 81-85, 24 October 2013; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Stojkovic v. France and Belgium, no. 25303/08, §§ 51-57, 27 October 2011). A systemic restriction of this kind, based on the relevant statutory provisions, was sufficient in itself for the Court to find a violation of Article 6 (see, for example, Dayanan v. Turkey, no. 7377/03 §§ 31-33, 13 October 2009; Yeşilkaya v. Turkey, no. 59780/00, 8 December 2009; and Fazli Kaya v. Turkey, no. 24820/05, 17 September 2013). The same situation appears to obtain in the present case.
45. Nevertheless, unlike in the above mentioned examples, the criminal proceedings in the present case have not come to an end. Thus, despite the peculiar interpretation of the Court’s case-law by the Constitutional Court, and although it may be unlikely, it cannot be entirely excluded that the courts of criminal jurisdiction, before which the case is heard, hear the case in the same circumstances that would have existed had the right to legal-assistance during pre-trial stage not been disregarded, namely by expunging from the records the relevant statements. The Court notes that, if, because of the limitations of the applicable criminal procedural law, it is not possible given the stage reached in the pending proceedings, to expunge from the records the relevant statements (whether at the request of the applicant or by the courts of criminal jurisdiction of their own motion), it cannot be excluded that the legislature take action to ensure that a procedure is made available at the earliest opportunity for this purpose.
46. Furthermore, even assuming that the above scenario would not come to be, the Court considers that it cannot be excluded that the applicant be eventually acquitted or that proceedings be discontinued.
47. The Court observes that applications concerning the same subject matter as that at issue in the present case were rejected as premature when the criminal proceedings were still pending (see, Kesik v. Turkey, (dec.), no. 18376/09, 24 August 2010 and Simons v. Belgium (dec.), no. 71407/10, 28 August 2012) and, where the applicant had ultimately been acquitted, the complaint was rejected on the ground that the applicant had no victim status (see Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010).
48. The Court finds no reason to deem otherwise in the present case. Without prejudice to the applicant’s possibility of bringing new proceedings before this Court in the event of a conviction by the domestic courts, as matters stand to date, given that the criminal proceedings against the applicant are currently pending before the domestic courts, the Court finds this complaint to be premature. Consequently, this part of the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention, for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
49. The applicant also complained about the conflicting Constitutional Court judgments on the matter delivered by the country’s highest court, which ran counter to the principle of legal certainty as upheld in Beian v. Romania ((no. 1), no. 30658/05, ECHR 2007-V (extracts)).
50. The Government contested that argument.
51. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint concerning the conflicting case-law of the Constitutional Court, which had never been brought before the domestic courts. They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings which, under the domestic rules, were not subject to a time-limit. They considered that such proceedings would not be particularly lengthy - they gave examples of two Article 6 length cases which had been decided within one year and two years and two months respectively.
52. The applicant noted that this complaint arose from the Constitutional Court judgment and thus could not have been included in the original application before that court. He could not have been expected to institute a new set of constitutional redress proceedings subsequently given the length of such proceedings, as often remarked upon also by this Court.
53. The Court notes that it has already established, in the context of Maltese cases before it, that even though Maltese domestic law provides for a remedy against a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy and that, in view of the specific situation of the Constitutional Court in the domestic legal order, in certain circumstances it is not a remedy which is required to be exhausted (see Saliba and Others v. Malta, no. 20287/10, § 78, 22 November 2011, and Bellizzi v. Malta, no. 46575/09, § 44, 21 June 2011).
54. In the present case the criminal proceedings against the applicant started in May 2009, and to date, more than five years later, the trial by jury has not yet commenced. Moreover, given the nature of the complaint and the above-mentioned specific situation of the Constitutional Court in the domestic legal order, the Court sees no reason to find otherwise in the circumstances of the present case.
55. Accordingly, the Government’s objection that domestic remedies have not been exhausted is dismissed.
56. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
57. The applicant submitted that the Constitutional Court had changed its interpretation of the Salduz judgment in 2012 and 2013 (see relevant domestic law) and that different conclusions had been arrived at in such cases. He noted that these conflicting judgments ran counter to the principle of legal certainty. It was the Constitutional Court’s role to create certainty; however, concerning this subject matter it had done just the opposite. The applicant relied on the case of Beian (cited above). He noted that in The Police vs Alvin Privitera of 11 April 2011, The Police vs Esron Pullicino of 12 April 2011 and The Police vs Mark Lombardi, also of 12 April 2011, the Constitutional Court had held that the claimants had suffered a breach of their right to a fair trial under Article 6 of the Convention in so far as they had not been legally assisted. This interpretation had been reversed in the judgments in the cases of Joseph Bugeja vs The Attorney General, 14 January 2013, The Police vs Tyron Fenech, 22 February 2013 and The Police vs Amanda Agius, also of 22 February 2013, as well as in the applicant’s case, decided on 26 April 2013. The interpretation had again been reversed by the first-instance court in The Republic of Malta vs Alfred Camilleri of 12 November 2012, albeit that, pending proceedings before this Court, the decision was once again overturned by the Constitutional Court in retrial proceedings. Moreover, the Government’s argument that the Constitutional Court had created a linear interpretation dependent on the age of the victim was also disproved by the recent judgment in Taliana vs Commissioner of Police et al, (Civil Court (First Hall) constitutional jurisdiction, 30 April 2014 - now pending on appeal before the Constitutional Court), which had not found a violation despite the applicant being a minor.
(b) The Government
58. The Government submitted that the case did not concern uncertainty in the interpretation of the law, but alleged uncertainty following a judgment delivered by the Court. In their view the applicant disagreed with the findings in his case and was attempting to fabricate a complaint based on the judicial interpretation of that judgment.
59. The Government submitted that the Court’s judgments had to be interpreted by the domestic courts with reference to the specific circumstances of each case before them. They noted that the facts of the cases decided in 2011 had been different to those decided subsequently.
60. Moreover, the Government submitted that it was a natural consequence of a judicial system based on various strata of jurisdiction that judgments might vary over the years (they referred to Santos Pinto v. Portugal, no. 39005/04, 20 May 2008). The Government noted that in Albu and Others v. Romania (nos. 34796/09 etc., 10 May 2012), the Court had reiterated the general principles applicable in cases concerning conflicting court decisions. The Court had emphasised that it was not its function to deal with errors of fact or law allegedly committed by a national court, unless they had infringed rights and freedoms protected by the Convention. Furthermore, it had reiterated that the possibility of conflicting court decisions was an inherent trait of any judicial system. For the Court it was important to establish whether “profound and long-standing differences” existed in the case-law of the domestic courts, whether the domestic law provided for machinery for overcoming those inconsistencies, whether that machinery had been applied and, if appropriate, to what effect. A key consideration in assessing the above was whether a certain stability in legal situations had been ensured, as legal certainty contributed to public confidence in the courts. However, the requirements of legal certainty did not create a right of consistency of case-law, given that case-law development was not, in itself, contrary to the proper administration of justice. The Court had observed that achieving consistency of the law might take time, and that periods of conflicting case-law might therefore be tolerated without undermining legal certainty.
61. The Government distinguished between the judgments cited by the applicant, which concerned Article 6 complaints in connection with criminal proceedings that had come to an end, and the judgment in the case of the applicant, which concerned criminal proceedings that were still pending. They submitted that the applicant’s case should thus be compared with cases falling into the latter category, such as Charles Steven Muscat vs the Attorney General, decided by the Constitutional Court on 8 October 2012; The Police vs Patrick Spiteri, decided by the Constitutional Court on 25 January 2013; The Police vs Amanda Agius and The Police vs Tyrone Fenech, both decided by the Constitutional Court on 22 February 2013; and The Republic of Malta vs Carmel Camilleri, also decided by the Constitutional Court on 22 February 2013.
62. The Government submitted that in the Muscat, Spiteri and Camilleri cases the Constitutional Court had not found a violation. On the other hand, in the Agius and Fenech cases a violation had been found by the Constitutional Court because they were very similar to the Privitera, Lombardi and Pullicino cases cited by the applicant. According to the Government’s analysis of the cases, it was clear that the reason for the finding of a violation had been the vulnerability of the accused and the fact that the only evidence had been their own admission of guilt, made in the absence of legal assistance. Ms Agius and Mr Fenech had been very young when the statements had been taken, and on the basis of their age the domestic courts had found that this factor was decisive when analysing whether the individual had suffered a violation as a result of the lack of legal assistance. In the other three cases (Muscat, Spiteri and Camilleri), like in the applicant’s case, the accused had been mature adults: Mr Muscat had given the statement while he was imprisoned following a sentence for a double murder that he had committed, and Mr Spiteri had been a high-ranking police officer. In all four cases (Muscat, Spiteri, Camilleri and the applicant’s) there was other evidence besides the statements, and the latter did not contain an admission of guilt on the part of the individual concerned. They further noted that the case of Taliana, cited by the applicant, was pending on appeal and thus could not be compared.
63. In the Government’s view, contrary to that asserted by the applicant, the Constitutional Court had managed to create legal certainty by establishing a pattern in the manner in which cases concerning the subject matter at issue were being dealt with. From an analysis of the judgments it clearly transpired that the Constitutional Court attributed importance to the vulnerability of the individual in those cases where the only evidence that the prosecution had was an admission of guilt made in the statement. The Constitutional Court has also established that each and every case was considered on its own merits, and if it transpired that the person was not a vulnerable person, or when there was other evidence besides an admission of guilt made in a statement, the Constitutional Court did not find an Article 6 violation. Thus, there were no divergences in the case-law of the Constitutional Court.
2. The Court’s assessment
(a) General principles
64. One of the fundamental aspects of the rule of law is the principle of legal certainty (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII), which, inter alia, guarantees a certain stability in legal situations and contributes to public confidence in the courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 57, 20 October 2011). The persistence of conflicting court decisions, on the other hand, can create a state of legal uncertainty likely to reduce public confidence in the judicial system, whereas such confidence is clearly one of the essential components of a State based on the rule of law (see Vinčić and Others v. Serbia, nos. 44698/06 and others, § 56, 1 December 2009). However, the requirements of legal certainty and the protection of the legitimate confidence of the public do not confer an acquired right to consistency of case-law (see Unédic v. France, no. 20153/04, § 74, 18 December 2008) and case-law development is not, in itself, contrary to the proper administration of justice since a failure to maintain a dynamic and evolutive approach would risk hindering reform or improvement (see Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 38, 14 January 2010).
65. The Court has been called upon a number of times to examine cases concerning conflicting court decisions and has thus had an opportunity to pronounce judgment on the conditions in which conflicting decisions of domestic supreme courts were in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention (see Paduraru v. Romania, no. 63252/00, ECHR 2005-XII (extracts); Beian v. Romania (no. 1), no. 30658/05, ECHR 2007-XIII (extracts); Iordan Iordanov and Others v. Bulgaria, no. 23530/02, 2 July 2009; Perez Arias v. Spain, no. 32978/03, 28 June 2007; Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, 27 January 2009; Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008; and Tudor Tudor v. Romania, no. 21911/03, 24 March 2009). In so doing it has explained the criteria that guided its assessment, which consist in establishing whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Iordan Iordanov and Others, cited above, §§ 49-50).
(b) Application to the present case
66. Having analysed the judgments brought to the Court’s attention the Court observes that the difference the applicant complains of resides not in the factual situations examined by the domestic courts (see, conversely, Erol Uçar v. Turkey (dec.), no. 12960/05, 29 September 2009) - in so far as all the claimants were subject to the blanket provision - but in the application of the law (based on case-law, namely the case-law of this Court). It also appears that the Constitutional Court originally followed the Salduz judgment strictly. However, at some point, notably from 2012 onwards, the Constitutional Court “restricted” its interpretation of the Salduz judgment, with the consequence that a number of persons who were subject to the systemic ban in Malta, and who therefore were not assisted by a lawyer when they made their statements, did not have the benefit of favourable judgments remedying their situation. This interpretation appears to have remained the practice thereafter, in so far as the only example brought by the applicant to demonstrate a further inconsistency was the case of The Republic of Malta vs Alfred Camilleri of 12 November 2012, which was however overturned by the Constitutional Court pending proceedings before this Court.
67. Thus, in the Court’s view, unlike in Beian (cited above), the present case does not deal with divergent approaches by the supreme court - in the present case the Constitutional Court, which is the highest court in Malta - which could create jurisprudential uncertainty, depriving the applicant of the benefits arising from the law. The situation in the present case constituted a reversal of case-law. In this connection the Court reiterates that, as held in S.S. Balıklıçeşme Beldesi Tarım Kalkınma Kooperatifi and Others v. Turkey (nos. 3573/05, 3617/05, 9667/05, 9884/05, 9891/05, 10167/05, 10228/05, 17258/05, 17260/05, 17262/05, 17275/05, 17290/05 and 17293/05, 30 November 2010), in the absence of arbitrariness, a reversal of case-law falls within the discretionary powers of the domestic courts, notably in countries which have a system of written law (as in Malta) and which are not, in theory, bound by precedent (see also Torri and Others v. Italy, (dec.), nos. 11838/07 and 12302/07, § 42, 24 January 2012, and Yiğit v Turkey, (dec.) no. 39529/10, §§ 21-22, 14 April 2014).
68. The question is, however, more complex, in that the reversal of the case-law did not concern the interpretation of domestic legal norms but of international norms, as interpreted by this Court in its case-law. In the present case the Constitutional Court of Malta departed from the principles established by the Court, a course of action which it was, in theory, free to undertake - although it removes any opportunity for the domestic authorities to make matters right in the domestic system and forces an applicant to bring proceedings before the Court under Article 34 of the Convention. Nevertheless, the Court considers that the way that domestic courts apply relevant case-law of this Court to domestic proceedings cannot by itself raise an issue of legal certainty at the domestic level. Importantly, the Court notes that there is no indication that in the national court’s application of their interpretation of this Court’s case-law in the applicants’ case, there was any arbitrariness capable of raising an issue under the Convention. Indeed, it appears that within their autonomous interpretation of the case-law, the domestic courts were coherent and respected the criteria of judicial assessment.
69. In these circumstances the Court considers that no issue arises in respect of Article 6 § 1 as regards the notion of legal certainty in the present proceedings. There has accordingly been no violation of that provision.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
70. The applicant further complained that he had been treated differently to others in his situation, as evidenced by the conflicting constitutional judgments, without any objective and reasonable justification. In his view, this was contrary to Article 14 of the Convention, which reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
71. The Government contested that argument.
A. The parties’ submissions
72. The applicant considered that despite his being in an identical, analogous or relevantly similar situation to other persons who had not been assisted by a lawyer, the Constitutional Court had not found in his favour. That decision had been subjective and not based on any objective justification, and was therefore discriminatory. He noted that discrimination did not have to be based on one specific ground, although in the present case, according to the Government, it appeared that the discrimination had been on the basis of age.
73. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaint, which had never been brought before the domestic courts. They further noted that the applicant could still lodge such a complaint in a fresh set of constitutional proceedings, which under domestic rules were not subject to a time-limit.
74. As to the merits, the Government submitted that if the Court found no violation of the substantive provision it could not find a violation of Article 14. Moreover, the applicant had not provided evidence linking the alleged discrimination with any of the grounds provided for by Article 14. Lastly, the Government submitted that the applicant had not proved that he had been treated differently to others in the same situation, namely mature persons who had given a statement during the investigation stage but had not admitted to the crime and whose proceedings contained other evidence in connection with the offence. In fact, the applicant had been treated in the same manner as others in that position and had therefore not suffered any discrimination.
B. The Court’s assessment
75. The Court refers to the considerations it set out above (see paragraphs 53-55 above) and therefore holds that the Government’s objection that domestic remedies have not been exhausted must be rejected.
76. The Court reiterates that although the application of Article 14 does not presuppose a breach of the other substantive provisions of the Convention and its Protocols - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Mintoff v. Malta, (dec.), no. 4566/07, 26 June 2007, and Zammit Maempel v. Malta, no. 24202/10, §§ 81-82, 22 November 2011).
77. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007, and Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). The Court also points out that the grounds on which those differences of treatment are based are relevant in the context of Article 14. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see O’Donoghue and Others v. the United Kingdom, no. 34848/07, § 101, ECHR 2010 (extracts)).
78. The Court notes that, as Article 6 applies in the present case, it follows that Article 14, in conjunction with the latter provision, is also applicable.
79. The Court observes that the applicant, like others in his situation, has been affected by a blanket ban. There is therefore a common denominator, and the applicant can, to an extent, be considered as being in an analogous situation. However, it is also true that the domestic judgments he refers to as a means of comparison concerned individuals whose situation was different from his; in particular, they concerned young persons who had given a statement during the investigation stage and whose proceedings contained no other evidence in connection with the offence. Thus, despite the fact that the applicant claims that he was discriminated against on the basis of age, the Court considers that this is not the sole criterion on which the domestic courts based their differentiation of the cases.
80. Moreover, the Court notes that, while the Court’s case-law suggests that the applicant may suffer a violation of his Article 6 rights as a result of his not having been assisted by a lawyer, the Court did not find that an issue arose under the Convention as a result of the reversal of the case-law by the domestic courts. Following that reversal it appears that all cases of the same kind were examined on the basis of the same legal principles and criteria of judicial assessment (see, mutatis mutandis, Ucar v. Turkey, (dec.), no. 12960/05, 29 September 2009), namely the new interpretation given to this Court’s case-law. It also appears that those cases that were similar to the applicant’s case were rejected.
81. It follows that any difference in treatment was objectively and reasonably justified on the basis of the new interpretation given by the domestic courts concerning the relevant safeguard, which (however questionable it may be on the merits) must be considered as falling within the margin of appreciation of a State and therefore not contrary to Article 14 (see Pérez Arias, cited above, § 28). Furthermore, it does not appear from the case file that there was any discrimination against the applicant on any other grounds (see, in similar circumstances, David and Others v. Romania, (dec.), no. 54577/07, 9 April 2013).
82. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
83. Lastly, the applicant complained that the constitutional jurisdictions had failed to afford him an effective remedy as required by Article 13 of the Convention, in particular in so far as they had stated that the criminal court would examine whether the statements had been given under duress (sic.). They had noted that the only effective remedy for such a violation would be a retrial, or in the present case a trial without the use of the impugned evidence, ensuring that the only statements used in evidence were those obtained with a lawyer present.
84. The Court notes that it is unclear whether the applicant intended to lodge this complaint as, unlike the other complaints, it is not reiterated in the part of the form concerning the object of the application. In any event, the Court notes that the arguments made would be of relevance only if the constitutional jurisdictions had found in the applicant’s favour, and the complaint is therefore of little pertinence in connection with the facts of the present case, where the Constitutional Court found against the applicant. Moreover, the Court reiterates that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006-VII) and the mere fact that an applicant’s claim fails is not in itself sufficient to render the remedy ineffective (see Amann v. Switzerland, [GC], no. 27798/95, §§ 88-89, ECHR 2002-II). In the present case it has not been argued that there were no prospects of success. The Court notes that the Constitutional Court could have found in favour of the applicant and could have ordered that the relevant statements be expunged, given that the criminal proceedings were still pending.
85. It follows that the remedy in question cannot be considered to be ineffective; the complaint must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
1. Declares admissible, unanimously, the complaint under Article 6 § 1 in respect of the constitutional proceedings (conflicting judgments);
2. Declares inadmissible, by a majority, the complaint under Article 6 § 3 in conjunction with Article 6 § 1 concerning the criminal proceedings (lack of legal assistance while in police custody);
3. Declares inadmissible, unanimously, the remainder of the application;
4. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention in respect of the constitutional proceedings (conflicting judgments).
Done in English, and notified in writing on 2 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Mark Villiger
Deputy Registrar President