PACE v. MALTA (European Court of Human Rights)

Last Updated on May 13, 2019 by LawEuro

Communicated on 13 December 2018

THIRD SECTION

Application no. 20319/15
George PACE
against Malta
lodged on 23 April 2015

STATEMENT OF FACTS

The applicant, Mr George Pace, is a Maltese national, who was born in 1951 and is detained at the Corradino Correctional Facility, Paola ‑ Malta. He is represented before the Court by Dr Marion Camilleri, a lawyer practising in Valletta.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 2004, fifteen years after a robbery which ended in a murder (on 8 April 1989), the applicant was questioned by the police and taken to the site of the murder, without the assistance of a lawyer. During the interrogations, after being duly cautioned about his right to remain silent, the applicant gave statements, on 2, 3 and 5 September 2004, in which the applicant admitted to his involvement in the planned robbery but claimed to be unaware that the victim would be killed. He thus denied having been involved in the voluntary homicide.

It appears that after being called by the police on 2 September 2004, the applicant was taken to the site of the murder where he explained to officer PC some details of the happenings of the evening of 8 April 1989. Details of this conversation are not available to the Court. The applicant later released the statements, mentioned above, as follows:

1.  The questioning on 2 September before the Police

On 2 September 2004, when questioned at the Police headquarters at 19.15, by officers PC, EC and CP, the applicant was unable to give his birth date or identity card number, but he knew his address, his phone number and the name of his relatives. He was again informed of his right to remain silent, and that his statements would be recorded and a copy of the recording would be given to him. The applicant acknowledged to have understood the information. The applicant was asked to give his version of events concerning the murder of 9 April 1989, in respect of which he had already informed another inspector who he had also accompanied on the site of the murder. In reply to various questions he explained as follows:

The applicant stated that he worked as a watchman at the train station in Birkirkara and had worked there for twenty nine years without ever having any problems. He spoke about another watchman known as “The Fish” from Għargur and about the victim who had come from England, both of whom he used to chat with. The applicant explained he had given a lift to the victim a few times, to buy tobacco or other items. He then explained that “The Fish” (hereinafter F.) as well as another person known as “The Body” (hereinafter B.) had mentioned to him that the victim was wealthy. The applicant gave further details about the identity of B. and told the police that B. and F. often stopped to chat at the station and repeatedly suggested that all three of them go out for dinner. He also explained that the victim often went to the station to chat with the applicant and that sometimes he also took over his duties while the applicant went to have a quick shower. During such times F. and B. were often there. He explained that on one occasion F. and B. suggested that the four of them go for dinner, and that he had agreed insisting that he did not know that they were going to kill him. The applicant admitted that the intention (skop) had been to take the victim out for dinner and steal the money he often said he carried with him. The applicant explained that the four of them had left at about 19.30 and gone to the restaurant with his red car. The applicant was driving and F. was sitting next to him on the front seat. After dining, F. and B. suggested they visit their dura (a rudimentary sort of room in the country side with or without a ceiling built with ragged rocks and used by bird trappers and hunters as a hiding place) at L-Aħraxtal-Mellieħa (AM). The applicant believed them and once there the other three got out of the car and walked towards the dura. The applicant went to join them after parking the car but on the way he heard gun shots. He was close enough to see B. holding the rifle and shooting. He explained that they [F. and B.] shot the victim, at least twice, shortly after their arrival at the venue and then the three of them ran off. He explained that before running off F. had searched the victim’s pockets and partly removed his trousers. He was not sure whether they [F. and B.] had also removed his shoes and socks. During such time the applicant said he had made the sign of the cross (with his fingers wet with saliva) on the victim’s feet and head as he felt sorry for him. He gave details about the packet of tobacco which the victim usually carried with him, although the applicant was not sure whether he had had it on him that day. The applicant could not recall what he himself was wearing that day but insisted that he had no blood stains on him. After the incident he drove F and B back to the station and he went home. After the incident they only met once and they had remarked that they had been unlucky as they had not found anything on the victim. The applicant had remarked that what F. and B. had done had not been worth it as they (including the applicant) had got nothing out of it. He stated that at the time he had been blinded as his daughter was ill and he had nothing else in life. They had also told him that if he spoke up they would kill him too. The applicant told the police that he heard that the police found the body a day or two later and that he had scrapped his car but could not remember when. He also stated that he knew nothing about the rifle as he had never owned a fire arm and was not acquainted with such arms. Following the incident he had lost touch with F. and B., and had only seen B. once without speaking to him. Returning to the day of the incident the applicant stated that he had not given much attention to what B. had put in his luggage boot, a sack of around 3 feet, and he had not questioned B. about it.

The applicant was also shown some photographs but he was unable to recognise the individual/s. At one point he thought one of the photos was that of F. but the police corrected him (as it was the victim). The applicant said the victim was over sixty at the time, and that the person in the photo was not the victim. Acknowledging that the applicant and the victim had been on speaking terms for more than a year, and that at the time the applicant needed money, he denied that it was he who had told the others that the applicant was wealthy, and recalled that it was likely that it was F. who had the idea to rob the victim. He admitted once again that they had wanted to rob the victim but denied that he was aware that he would be killed (despite the insistence by the police that the plan was odd, since had the victim been left alive he would have reported the robbery to the police and identified the applicant). The applicant said that he had not thought about that possibility and all he was thinking of was making some money. He swore that he had had no idea that the victim would be killed. The applicant reiterated that he had a clean past and never imagined getting into such a mess. During various stages of the questioning the applicant confirmed that he had understood the questions being put to him.

Lastly he confirmed that he had not been subjected to violence or threatened or promised favours during the questioning and that he had spoken willingly before the three police officers present.

2.  The statement of 3 September before the inquiring magistrate

On 3 September 2004 the Court of Magistrates as a court of criminal inquiry cautioned the applicant as to his right to remain silent and that everything he would say could be used as evidence against him.

Again the applicant was unable to give his birth date or identity card number, but he knew his address, his phone number and the name of his relatives. On being asked to tell his version of events the applicant reiterated the substance of his statement of 2 September. He noted further that at the beginning there had been no plan connected to the dinner; that when they left the station they had passed by the house of B. who brought a sack, which the applicant only became aware of on arriving at AM, because B. told him that he had brought a rifle; the applicant then stated that B. had told him before, that he needed it for bird hunting and to clean the dura. The applicant was not sure whether he suspected it could be used to kill the victim. He admitted that he had told B. and F. some four days prior to the incident that it would be good to make some money, but he had not imagined that it would end up in murder. He admitted that he was going to be an accomplice in the robbery, but reiterated that he did not know that the victim would be killed. The applicant added that on their arrival at the dura, he told F. and B. to leave the victim alone, as there were lovers in a car close by. He also confirmed that the day before (2 September) he had taken the police officer to the site and that he had been photographed showing the police the dura and where he had been parked. He also confirmed that on being called up he freely talked to the inspector as he needed to get it off his chest and tell the truth.

3.  The questioning of 5 September before the Police

On 5 September 2004, when questioned at the Police headquarters at 10.40, by officers PC, EC and CP, the applicant was unable to give his birth date or identity card number, but he knew his address, his phone number and the name of his relatives. He was again informed of his right to remain silent, and that his statements would be recorded and could be used against him. He was told further clarifications were needed pursuant to the questioning of the other suspects.

In reply to the questioning the applicant stated that the victim had often mentioned he was wealthy thus four days before the incident B., F. and the applicant decided they would rob him by taking him somewhere. The applicant admitted it was difficult for them to rob the victim after a dinner without him recognising them thereafter but explained that his intention was to say it was a joke if no money was found on him, but then “he” [B.] brought a rifle. The applicant denied that he had sent B. to buy ammunition and told the police that B. brought the ammunition together with the rifle from his house. He recalled that he had given two persons a lift on the way to AM, and that when there a police car had passed and that they had feared getting caught. The applicant reiterated that he knew nothing about fire‑arms and confirmed it was B. who had fired the shots and that F. and B. had searched the victim’s pockets, but that the applicant had only touched the victim while making the sign of the cross on him before running away, in his red car whose registration he could not recall and which he had scrapped some time after. He claimed to be stating the truth and that he could now rest. When asked, he confirmed that he had not been subjected to violence threats or promises during the questioning.

4.  The applicant’s trial

On 2 March 2007 the Attorney General (hereinafter referred to as the “AG”), filed a bill of indictment against the applicant and B. The AG accused the applicant and B. of having on 8 April 1989: (1) committed wilful homicide (2) been in possession of a fire‑arm without a legitimate aim at the time of committing the wilful homicide, and, (3) been in possession of a fire-arm or ammunition without having a licence duly authorised and issued by the Commissioner of Police.

The applicant’s statements were used at the trial, also by the applicant’s defence who relied specifically on the content of the three statements. In particular the statements of 3 and 5 September 2004 were circulated to the jury on 19 October 2009. The assistant commissioner and another person testified that the fire-arm used for the homicide belonged to B. The record of the applicant’s testimony given before the jury was not submitted to the Court. It appears however that he had testified that he realised that the victim would be killed only a few seconds before it happened and thus he could not impede the murder or run away. He had also testified that when B had put the sack in the car the applicant had asked him what it contained, and that B had replied that it was a rifle which he brought to shoot birds if he saw any.

The entire address of the judge to the jury was not submitted to the Court. From the relevant judgments it however appears that part of the address read as follows:

“he [the applicant] told us that there was a moment when he realised what would happen, and then the issue was whether he realised as soon as they got out of the car or a little later when he was 8 feet away and before walking [towards the dura] when he told the others that he had seen lovers in a car … he [the applicant] later told us it was a few seconds before the shots, it is now for you, in view of this testimony, to accept either of the versions or explanations, this is a question of fact. Admittedly there was some stretching (tiġbid), either because he didn’t understand the questions, or he did not know how to answer, or because of his low intelligence, or he did not want to pay for his dues, that’s for you to decide. However, it was undeniable that there had been different explanations, not to say different versions. It could have been because he didn’t understand the question true, or because he was tired, or because of his age, or his low intelligence, I wouldn’t know. But there, there is a little bit of … anyways one has to see what the truth is.

So he [the applicant] is saying that he realised that they might kill him [the victim], hurt him or shoot him. So much so that he told them about the nearby car and that they should leave him alone and not continue. According to the defence, that was an intelligent move so that the others would be scared and change their mind. This is the thesis of the defence and one has to see what weight to give it, again, if you think its probable and thus acceptable, then there is no argument and you will find that it is true that he realised and that he tried to impeded it and could not do more.

The prosecution is telling you otherwise. Its telling you, firstly, if he realised when they were still next to the car as he seems to say at the beginning – at least that’s how I understood him, I don’t know what you understood – but anyway see the facts, the testimony if necessary and all, he would have had time to impede it as there was a five minute walk to the room. Whether he could impede it and how, is for you to decide….[judge gives a number of examples] … see whether he could have done anything more than he did. These are points of fact which you have to see. You might be satisfied that what he did was enough. This is a question of fact.

But have a look at the time interval, if it’s true he realised when he said he did, when getting out of the car, and the other one was some steps ahead and ignored him and moved on. But you are in the car, you can leave, start screaming, assess whether he could have done more. Did he do what he had to do once he understood what the rifle was for. That he admitted, but the time lapse remains at issue. He then followed them, he did nothing and went along. Where was he when the shot was fired? He said he realised when [B] was about to shoot. How many steps away was he? We don’t know exactly but again maybe he could have done something at that stage [examples]. Assess whether there was time to do something, because if there wasn’t and the accused was taken by surprise, then he is not at fault, and he cannot be found guilty as an accomplice to the murder, he would have been guilty of complicity in an attempted robbery, but that is not the charge. So ignore that. This is again a question of fact.

So if you are not convinced about the theory put forward by the prosecution, that they had already agreed to kill him, article 45 (b) [of the Criminal Code] does not come to play. But article 45 (c) raises a question of fact, if we are not convinced (to the degree of moral certainty or probability) that he knew [beforehand], then one must assess when did he became aware? Where? Where were all the parties at that point? Could he have done something? What could he have done? Had he done what he said he had done, was that enough? If he didn’t do what he should have done, then he is an accomplice. That is the exercise you have to undertake and the questions you have to put to yourself. To accept the prosecution’s theory you must be convinced without a reasonable doubt, to accept that of the defence you only need a probability. But the question of fact is for you to decide.”

On an unspecified date the jury found the applicant guilty (by seven votes to two), as an accomplice, of the first and second charges, but not as the principal offender. In regard to the third accusation, the applicant was acquitted (unanimously).

By a judgment of 22 October 2009 the Criminal Court sentenced the applicant to thirty years’ imprisonment. In awarding punishment the Criminal Court considered seriousness and brutality of the homicide at issue (the victim had been betrayed by his friends who led him to believe that they were going for dinner only to take him in a remote area where he was shot in the face and chest for the money he was carrying), as well as the fact that the applicant had previously been found guilty of i) slight bodily harm and breach of the peace ii) inter alia, attempted grievous bodily harm and iii) negligent driving. The Criminal Court further bore in mind the applicant’s arguments to the effect that he was of advanced age, the jury was not unanimous, he should not be penalised for not having admitted to the crime, and that proceedings against various individuals had been pursued as a result of his collaboration in the early stages of the investigation.

On 3 November 2009 the applicant appealed the decision of the Criminal Court. His ground of appeal consisted of the following: i) a wrong assessment of facts – in so far as the evidence presented could not have led to the conclusion that he was an accomplice to the homicide, according to law; indeed the prosecution had solely put forward the three statements he had given during the investigation stage, and then the applicant had given a statement before the jury. He noted that despite them not being identical, his statements were not in conflict with each other – indeed as shown through these statements the applicant had low intelligence and was not even able to indicate his address or identity card number, yet all throughout while admitting his involvement in the robbery he always denied his involvement in the murder; ii) the fact that the judge presiding the jury, when addressing the jury, had shed doubts on the veracity of the applicants statement (concerning the moment in time in which he realised that a homicide was to take place); iii) it had not resulted that he was carrying a fire‑arm; iv) according to law he should not have been punished in excess of twenty years.

By a judgment of 19 May 2011 the Criminal Court of Appeal, having dismissed all the grounds of appeal, confirmed and upheld the first‑instance judgment in its entirety. In relation to the assessment of evidence, having examined in detail the acts of the proceedings, including the transcription of the testimonies, the judge’s address to the jury, the documents exhibited as well as the entirety of the acts of the inquiry, there was no doubt that all the factual elements had been brought to the attention of the jury who could decide the case in the light of all the evidence. It also noted that the fact that the applicant could not remember his birth date or identity numbers, did not render him a person of low intelligence as claimed by his defence – indeed the applicant had been able to indicate the name of his father and maiden name of his mother, as well as his address and mobile phone number. The jury having personally seen and heard all the evidence, found him guilty. Further having examined the applicant’s three statements at the investigation, the court disagreed with the defence that during the questioning the applicant had been asked questions haphazardly and not in chronology, and considered that the applicant had replied smoothly to all the questions.

The Court of Appeal found that the jury could reasonably have found him guilty of complicity and this despite the incoherencies between his testimony of 2 and 3 September 2004 or that during the jury (particularly as to when he obtained knowledge of the rifle, whether he heard or saw the shot and the distances). There was no doubt that the criminals had agreed to rob the victim and that to achieve this they had to take him out to eat and then eventually take him to AM [an identified rural location]. While the applicant claimed not to be aware that the victim would be killed, it was his car that was used and he was the driver who took everyone to AM. The applicant claimed that it was only then that he realised that B. had a rifle and that he tried to stop the other accused by saying that there were lovers in the area, but that nevertheless the men continued their way to the room where the murder took place. The applicant did nothing else and followed them, stating in his testimony that he realised what would happen only a few minutes before and thus it was impossible for him to impede it. The judge noted that it resulted from his own testimony that the applicant knew that they were going to rob the victim and that one of his friends carried a rifle. In the judge’s view what had happened had been a natural and foreseeable consequence of the means used by the robbers, and that the applicant had done nothing to impede us, though he tried to conveniently argue that there was no time for him to act.

As to the judge’s address, it found that the comments made by the judge where not robust and he could not be criticised for having pointed out any “inconsistencies and illogicalities”. His comments had to be seen in the light of the repeated warnings given to the jurors throughout the address and the context in which he said them.

5.  Constitutional Redress Proceedings

On 28 August 2011 the applicant filed constitutional redress proceedings. The applicant claimed that his rights as protected under Article 6 of the Convention had been violated. Indeed, the principal evidence brought against him consisted of three statements he made during three police interrogations in the absence of a lawyer. Before the constitutional jurisdiction the applicant testified that he could not read and write that he had not understood all that was being asked of him during the questioning, and that he was simply replying yes to all the police were suggesting, his replies consisted in yes and no, and he noted that he could not remember further details. During cross examination (in the constitutional redress proceedings) he stated that he did not remember being cautioned and that he was illiterate but that he had replied to everything even if he had not understood. At the same time he also said he had not replied to questions he had not understood. He admitted that he had not asked the police to speak more clearly or explain further the questions which he had not understood. He stated that had he known that he had a right to a lawyer he would have asked for one. He confirmed that he had taken the police on site and shown them where he stood during the incident.

On 9 April 2014 the Civil Court (First Hall) in its constitutional competence dismissed the applicant’s claim.

The court acknowledged that the applicant had not been legally assisted during his interrogations. However, according to the court there was no universal principle that established that a lack of legal assistance during interrogation automatically resulted in a violation of the right to a fair hearing. Making reference to Imbrioscia v. Switzerland (24 November 1993, Series A no. 275) and Ahmet Mete v. Turkey, (no. 77649/01, 25 April 2006) the court noted that it had to analyse the entirety of proceedings in order to determine whether the applicant’s right had been violated. It observed that the applicant had given his statements after he had been cautioned [that is, informed of his right to remain silent and that anything he said could be taken down and produced as evidence]. Moreover, the applicant admitted that he had not been threatened nor physically abused in any way during the police interrogations. Furthermore, throughout the criminal proceedings he had not tried to contest the explanations he had given to the police nor did he try to challenge the statements made before the Court of Criminal Inquiry, but rather he confirmed them through his co‑operation. In the court’s view the presence of a magistrate during the inquiry – was a sufficient guarantee [of the applicant’s fair trial rights]. The court also noted that the homicide had happened in 1989, and that the statements were made fifteen years later. Therefore, the applicant had had plenty of time to obtain legal advice. Nonetheless, the applicant only claimed that a breach of his rights had occurred months after the final decision of the Criminal Court of Appeal of 19 May 2011, despite the fact that the Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) judgment, which he relied upon, had been issued already in 2008.

On 28 April 2014 the applicant filed an appeal before the Constitutional Court. The applicant argued that under Convention case‑law, the denial of a lawyer at pre-trial stage constituted an automatic violation of a fair trial. In his case, the assistance of a lawyer was especially important since he could not read or write, and he did not understand complex language, such as that used by the police during the interrogation. Furthermore, he contended that his request should not be refused simply on the basis that a substantial amount of time had passed between the different stages of the proceedings.

On 31 October 2014, the Constitutional Court dismissed the applicant’s appeal and confirmed the judgment of the first-instance court in its entirety.

The Constitutional Court held that the applicant’s right to complain could not be denied only because of the passage of time, however, it could derive other conclusions from the passage of time, such as those regarding credibility. It was not completely unreasonable for it to assume that the applicant instituted such proceedings based on the evolution of jurisprudence before the ECtHR, in order to find a way to escape the consequences of his actions, which was not the reason behind human rights protection.

As to the claim of his inability to understand, the Constitutional Court noted that throughout the criminal proceedings the applicant had had a lawyer and could have pointed out to the jury that he had not understood the questions which had thus affected his replies, and in turn, the content of his statements. In any event, while the applicant had testified [before the Constitutional Court] that since he had not understood the police, he had simply answered ‘yes’ or ‘no’ (even though at a different stage of the same testimony he said he always answered ‘yes’), the statements showed that this was not the case. They showed that the answers given were those of a person that fully understood the questions being asked. The police had also testified to that effect.

The Constitutional Court emphasized that the right granted by the Convention was that of a fair hearing and not that of legal assistance during interrogation. While the denial of legal assistance could lead to a violation of a fair hearing, it did not ipso facto do so. One had to examine the effect of the absence of legal assistance during interrogation in the light of the entire proceedings. In the Constitutional Court’s view the ECtHR’s case‑law should not be given a very broad reading. The circumstances of the Salduz case were extreme and exceptional – such circumstances did not exist in the present case. The more radical position taken in Dayanan v. Turkey (no. 7377/03, 13 October 2000), did not transpire to be an entirely correct interpretation of Article 6 of the Convention. In fact on the same day, in the case of Demirkaya v. Turkey (no. 31721/02, 13 October 2009), the ECtHR reiterated that to assess whether or not a trial was fair, regard should be had to the entirety of proceedings. Similarly in Pishchalnikov v. Russia (no. 7025/04, 24 September 2009), the ECtHR had reiterated that compliance with the requirements of fair trial had to be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or incident. An automatic violation in the present case could hardly be reconciled with the Court’s general stance on Article 6.

The Constitutional Court observed that the applicant did not appear to have felt at an unjust disadvantage during his interrogations (during which he gave his statements). This was evident given that the applicant did not retract his statement or challenge its content during the trial, as had been done by the applicants in Salduz and Demirkaya. To the contrary when the prosecution requested that a copy of his statement be forwarded to the jurors, the applicant’s representative did not object. Similarly, when the latter observed that forty‑eight hours had passed between the statement given on 2 September and that on 5 September, he explained that this reference had been made to explain some inconsistencies in the second statement and not “to impugn the validity of the second statement of 5 September”. The applicant had also re-affirmed his statement before the Court of Magistrates as a Court of Criminal Inquiry – a judicial officer independent of the Police – on 3 September 2004. Moreover, the statements of the applicant were not the only evidence that had led to the applicant being found guilty.

For the above reasons, and having considered the proceedings as a whole, the Constitutional Court considered that the applicant had not suffered any prejudice by the use of his statements and thus there had been no violation of the applicant’s fair trial rights.

B.  Relevant domestic law

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.”

Pursuant to the above notice, Article 355AT of the Criminal Code, in so far as relevant, at the time of the facts of the present case, read 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. …”

Article 365 of the Criminal Code reads as follows:

“After the conclusion of the case for the prosecution and for the defence, the judge shall address the jury, explaining to them the nature and the ingredients of the offence preferred in the indictment, as well as any other point of law which in the particular case may be connected with the functions of the jury, summing up, in such manner as he may think necessary, the evidence of the witnesses and other concurrent evidence, acquainting them with the powers which the jury may exercise in the particular case, and making all such other remarks as may tend to direct and instruct the jury for the proper discharge of their duties.”

COMPLAINT

The applicant alleges that his right to a fair trial as protected under Article 6 of the Convention was violated, because he was not permitted to consult a lawyer prior to making statements, which statements later formed the main evidence used against him in criminal proceedings, and on the basis of which he was found guilty.

QUESTIONS TO THE PARTIES

1.  Did the applicant have a fair trial in accordance with Article 6 §§ 1 and 3 (c) of the Convention, in particular as a result of the lack of assistance of a lawyer during the pre-trial stage of the proceedings (see Beuze v. Belgium [GC], no. 71409/10, 9 November 2018)?

2.  The Government are invited to submit the complete record of the presiding judge’s address to the jury, and of the statement that the applicant gave during the trial.