The fabricated robbery and the non-appointment of a lawyer in the police investigation. The Court was not persuaded of the existance of a ECHR violation.

JUDGMENT

Farrugia v. Malta 04.06.2019 (no. 63041/13)

see here

SUMMARY 

Fabricated robbery. Police Prosecution without the presence of a lawyer. Following a robbery in his professional area, the applicant was questioned by the police, who suspected that the crime was based, in particular, on the allegations of one of his employees, namely that the applicant had forced him to tie him up and simulate a robbery.

During his depositions with the police, the applicant did not have a lawyer as this is not provided for by the domestic law of Malta.

Following a hearing, the Court of Appeal decided to impose a one-year prison sentence on him. The applicant instituted a constitutional appeal procedure to complain about his conviction on the basis of testimonies he had given to the police in the trial without the assistance of a lawyer. His appeal was rejected in 2013.

The ECtHR ruled that the accused was often informed by the police of his right to remain silent and of his right to non-incrimination. However, although it indirectly ruled that there was a violation of Article 6 (3) (c) the Court stated that in such cases strict control should be given to whether the deprivation of the lawyer violates the fair trial. In this respect, it decided by a majority (5 against 2) that by way of exception, depriving a lawyer’s presence is not condemnable, but without clearly substantiatingits arguments.

PROVISIONS

Article 6 § 1

Article 6 § 3 (c)

PRINCIPAL FACTS 

The applicant, Carmel Joseph Farrugia, is a Maltese national who was born in 1951 and lives in Paola
(Malta).

The case concerned Mr Farrugia’s complaint about his police questioning after an alleged robbery at
his business premises in 2002.

The police suspected that the crime had been fabricated and questioned Mr Farrugia, confronting
him in particular with allegations by one of his employee’s that he had forced him to tie him up and
simulate a robbery. Mr Farrugia denied the allegations, explaining that four individuals had tied him
up in his showroom and stolen money.

He gave several statements over two days in the absence of a lawyer as domestic law at the time did
not provide for legal assistance at the pre-trial stage. He was, however, informed of his right to
remain silent and to not incriminate himself.

Criminal proceedings were brought against the applicant and, in 2007, the Court of Appeal found
that his colleague’s testimony was enough to conclude that the applicant was guilty of simulating an
offence. He was given a one-year suspended prison sentence.

The court also found that the colleague’s testimony was corroborated by the applicant’s statements,
which were inconsistent and lacked credibility. In particular, he had replied in an evasive and
hesitant way to police questions concerning his business and profits and had not adequately
explained why CCTV on his premises had not recorded anything on the day of the alleged crime.
Mr Farrugia brought constitutional redress proceedings to complain that his conviction had been
based on statements he had given to the police without the assistance of a lawyer. His claim was
dismissed in 2012, and his appeal rejected in 2013.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of
the European Convention on Human Rights, Mr Farrugia complained that he had not been provided
with a lawyer during police questioning.

THE DECISION OF THE COURT

The Court observes that the impugned restriction on the right of access to a lawyer in the present case was particularly extensive, as it derived from a lack of provision in the law and was applied throughout the entire pretrial phase during which the applicant gave several statements.

The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. There was clearly no such individual assessment in the present case, as the restriction was one of a general and mandatory nature. Furthermore, the Government have failed to demonstrate the existence of any exceptional circumstances which could have justified the restrictions on the applicants right, and it is not for the Court to ascertain such circumstances of its own motion.

The Court reiterates that where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against selfincrimination takes on particular importance. It is noteworthy that, in the present case, the applicant was informed repeatedly in a sufficiently explicit manner of his right to remain silent and the privilege against self-incrimination , and, at the time, no inferences could be drawn by the trial courts from the silence of the accused. It follows that the applicant could have chosen to remain silent and avoid any statement which could later substantially affect his position. Nevertheless, the Court notes that this did not mean that the applicant had waived the right to be assisted by a lawyer at that stage of the proceedings, a right which was not available in domestic law.

 The Court further notes that evidentiary elements, other than the applicants statements, were used to arrive at the conclusion of the applicants guilt, in particular the testimony of A.F., corroborated by the findings of the police, as well as other circumstances capable of amounting to circumstantial evidence such as the non-functioning of the CCTV. Indeed as noted by the Court of Criminal Appeal, A.F.s statement would have been sufficient to find for the applicants guilt . The Court observes further that given the nature of the crime in the present case, that is, the simulation of an offence, the absence of any evidence corroborating the applicants initial report to the police is also of substantial evidentiary value. Thus, the Court of Criminal Appeal based its decision on a plurality of factors.

No violation of Article 6 §§ 1 and 3 (c) (echrcaselaw.com)


ECHRCaseLaw

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