FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 18790/07
by Godfrey ELLUL
against Malta
The European Court of Human Rights (Fourth Section), sitting on 8 September 2009 as a Chamber composed of:
Nicolas Bratza, President,Lech Garlicki, Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,
and ,
Having regard to the above application lodged on 28 April 2007,
Having deliberated, decides as follows:
THE FACTS
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.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The background of the case
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.
2.  The proceedings before the Criminal Court
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.”
On 8 October 2002 the jury found the applicant guilty of all three charges against him. The Criminal Court, after considering all the circumstances of the case, the quantity of drugs involved, the gravity of the offence, the fact that the applicant was a recidivist and that he had breached a probation order, the different treatment of the co-accused, the verdict of the jury, which was not unanimous (8-1), and his criminal record, sentenced the applicant to 20 years’ imprisonment and a fine of MTL 20,000 (approximately EUR 48,000).
3.  The proceedings before the Criminal Court of Appeal
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’s choice to remain silent, but also that if, during a hearing, an accused gave reasons for his silence other than the exercise of his right to silence, the jurors were entitled to examine what these other reasons were and whether they were plausible in view of all the circumstances of the case. This was what had occurred in the present case. The applicant having chosen to give evidence at trial, the directions given by the trial judge had been proper.
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.
4.  The first set of constitutional proceedings
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.
5.  The second set of constitutional proceedings
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.
B.  Relevant domestic law
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.
COMPLAINTS
The applicant complained under Article 6 §§ 1 and 3 that the discretion of the public prosecutor, who was also a party to the case, to decide in which court to try an accused, and therefore the minimum mandatory sentence applicable, ran counter to the impartiality requirements of Article 6 of the Convention. He further complained under Article 6 §§ 1 and 2, and Article 2 of Protocol No. 7 in respect of his right to remain silent, his right to be presumed innocent on appeal, and the treatment of his appeal, in that the Court of Criminal Appeal did not make its own independent judgment of his case as required by law.
THE LAW
Relying on Article 6 §§ 1 and 3, the applicant complained that the discretion of the public prosecutor to decide in which court to try an accused ran counter to the impartiality requirements of Article 6 of the Convention. Moreover, relying on Article 6 §§ 1 and 2, he argued that he had suffered a violation of his right to remain silent and, later, of his right to be presumed innocent on appeal. Finally, he argued that the treatment of his appeal had been contrary to Article 2 of Protocol No. 7 to the Convention.
Article 6, in so far as relevant, reads as follows:
“In the determination of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.
2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.  Everyone charged with a criminal offence has the following minimum rights:
(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)  to have adequate time and facilities for the preparation of his defence;
(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;
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
Under Article 2 of Protocol No.7 to the Convention:
“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”
A.  The complaint in relation to the prosecutor’s discretion
The Court recalls that according to Article 35 § 1 of the Convention, it can only deal with the matter if the relevant complaint is raised within a period of six months from the date on which the final decision was taken (see Debono v. Malta, (dec.) no. 34539/02, 3 May 2005). In the present case the final decision in relation to this complaint was delivered on 27 April 2006 and therefore more than six months before the lodging of this application with the Court on 28 April 2007. It follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and is rejected pursuant to Article 35 § 4.
B.	The complaints under Article 6 §§ 1 and 2 of the Convention and Article 2 of Protocol No. 7 to the Convention in relation to (i) the right to remain silent, (ii) the presumption of innocence on appeal and (iii) the quality of the appeal proceedings
The Court notes the Constitutional Court’s statement as to the manner in which the appeal had been lodged by the applicant. Notwithstanding a possible failure by the applicant to comply with domestic requirements, the Constitutional Court confirmed the first-instance judgment. However, the Court does not consider it necessary to examine whether the applicant had properly exhausted domestic remedies in respect of these complaints, since they are in any event inadmissible for the following reasons.
1.  The right to remain silent
Although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. However, the Court recalls that the right to silence is not an absolute right. It cannot be said therefore that an accused’s decision to remain silent throughout criminal proceedings should necessarily have no implications when the trial court seeks to evaluate the evidence against him. In particular, established international standards in this area, while providing for the right to silence and the privilege against self-incrimination, are silent on this point (see ,  1996-I, §§ 45, 47).
Turning to the present case, the Court observes that there is no evidence that during questioning the applicant requested a lawyer and was denied that right. Nor is there any evidence that the applicant was in any manner influenced to waive that right. Nor has it been indicated, notwithstanding that one of the interviews was conducted in hospital, that at the time of questioning the applicant’s vulnerability was exploited to make him volunteer information in relation to the facts alleged. The Court can only conclude that the fact that he was unrepresented during questioning was a result of the applicant’s own free will. In any event, the Court notes that he was under no compulsion to speak and he could not be exposed to any criminal penalty for holding his silence.
In so far as the applicant can be understood as complaining that the trial judge allowed the jury to draw adverse inferences from his silence, the Court notes the following:
Firstly, the trial judge repeatedly reminded the jury that the applicant was within his rights in maintaining his silence during interview and, giving concrete examples, that no adverse inferences could be drawn from his silence. As noted above under Maltese law an accused person who refuses to co-operate with the police cannot as a rule be exposed to a risk of sanction and the applicant was not penalised in this case for the exercise of his right of silence.
It is true that the trial judge placed some emphasis on the fact that the applicant only volunteered his version of events during his trial. However, seen in the overall context of the judge’s three-hour address, this element was not unduly highlighted. In so far as it might be argued that the jurors were implicitly invited to question why he had not provided such a statement during police interview, the Court would observe that the matters put to the applicant during police questioning, following his discovery in the house during the police raid, clearly called for an explanation. It was thus proper for the trial judge to leave the jury the possibility of reflecting on the plausibility of the account given by the applicant for the first time at his trial. Moreover, as he was entitled to do, the trial judge directed the jury to give due consideration to the explanation which the applicant had given at his trial for his silence during police interview and to have regard to that explanation when addressing the applicant’s credibility.
The Court would further note that ample evidence had been presented on which the jury could convict the applicant including the view they had formed of his credibility during his witness testimony. The jurors had the benefit of hearing all the witness statements and viewing all the evidence submitted. The truth of the applicant’s statements had to be seen in the light of the overall circumstances of the case. The judge formulated his direction to the jury with reference to all the circumstances of the case and in terms which cannot be said to have disrespected the exercise by the applicant of his right to silence.
Moreover, there is nothing to indicate that the judge already had a preconceived opinion about the applicant’s guilt which he tried to communicate to the jury. Furthermore, at the time, the applicant’s counsel made no complaint that the judge had erred in the manner in which he had instructed the jury to approach the applicant’s decision to give evidence in court. When this was later claimed on appeal, in reviewing the judge’s directions the Court of Appeal, which was concerned not only with the applicant’s conviction but also the fairness of the proceedings, found that the directions had not been improper. The instructions to the jury had represented a fair explanation of the position at law, namely that no inferences of guilt could be drawn from the accused’s choice to remain silent during questioning but that it was for the jury to assess any explanation given for that silence.
The Court concludes that in the instant case the jury’s directions were confined in a manner compatible with the exercise by the applicant of his right to silence. It finds no appearance of a violation of Article 6 § 1 or 2 of the Convention and this part of the complaint must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
2.  The presumption of innocence on appeal
This part of the applicant’s complaint mainly relates to the fact that the Court of Appeal confined itself to examining whether the conclusion of the jurors was reasonably and lawfully reached, thus depriving him of the benefit of the presumption of innocence.
The Court reiterates that the  of innocence enshrined in Article 6 § 2 is one of the elements of the fair criminal trial that is required by paragraph 1. It will accordingly consider the applicant’s complaint from the standpoint of these two provisions taken together (see Västberga Taxi Aktiebolag and Vulic v. Sweden, no. 36985/97, § 108, 23 July 2002).
The Court reiterates that the manner of application of Article 6 § 1 to proceedings before courts of appeal depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see SigurþórArnarsson v. Iceland, . 44671/98, § 30, 15 July 2003).
The Court notes that the Court of Appeal was called upon to examine the case as to the facts and the law. In particular, it had to make a full assessment of the question of the applicant’s guilt or innocence. It partly reversed the first-instance judgment. It found the applicant innocent as to the first charge brought against him, and confirmed the other two charges on the basis of its own independent assessment of the evidence that had been submitted to the first-instance court. The Court considers that such a detailed analysis of all the evidence related to each charge belies the applicant’s allegations. The Court of Appeal was concerned with both the safety of the applicant’s conviction and whether the applicant had received a fair trial at first-instance. In these circumstances it finds no reason to doubt that the applicant had the benefit of the guarantees of Article 6 § 2.
This part of the complaint must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
3.  The quality of the appeal
The previous complaint is closely linked to the applicant’s complaint regarding the quality of the appeal under Article 2 of Protocol No. 7 to the Convention.
The Court reiterates that the Contracting States have in principle a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so and an application for leave to appeal can itself be regarded as a review within the meaning of Article 2 of Protocol No. 7 (see  (dec.), no. 38544/97, 4 July 2002).
The Court has already noted that the Court of Appeal was called upon to examine the case as to the facts and the law. It further held that this had been done with particular care and led to the partial reversal of the impugned judgment. The Court therefore finds that the review of the applicant’s conviction by the Court of Appeal was sufficient for the purposes of Article 2 of Protocol No. 7 to the Convention.
It follows that this complaint must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Lawrence Early	Nicolas Bratza
	Registrar	President