Lack of legal assistance does not render a violation of the right to a fair hearing when statements are made voluntarily outside pre-trial stage

By Dr Jodie Darmanin

The right to a fair hearing, as guaranteed by Article 39 of the Maltese Constitution and Article 6 of the European Convention on Human Rights, necessitates that a person undergoing criminal investigation be given the right to legal assistance at all stages of the criminal investigation, even in pre-trial stages.

This right intends to counter the vulnerability of suspects, safeguard against coercion and ill-treatment, ensure respect for the fundamental right against self-incrimination, and equip suspects with appropriate information regarding their rights.

However, as confirmed in a judgment delivered by the Constitutional Court on 12 July 2023 in the case of Francis Xavier Galea vs the Attorney General (later the State Advocate), the right to legal assistance exists only when a person is deemed a suspect of a criminal offence.

On 5 September 2008, the plaintiff received a consignment from Dubai, which he falsely declared as being DVDs and Hi-Fi. On 11 September, Galea contacted a customs official to inquire about the exportation of cigarettes to Libya.

At the same time, he presented an airway bill consisting of DVDs and hi-fis, justifying such discrepancy by stating that the false description was intended to prevent the load from being stolen upon re-exportation. A Customs inspector, in the presence of Galea, opened the consignment and confirmed that the load was of cigarettes and not DVDs and hi-fis. In the following days, the inspector called upon Galea for questioning and to submit a declaration. Following this encounter, the Commissioner for VAT and the Controller of Customs asked the Police Commissioner to take criminal action against Galea for false declarations made with the intent to avoid customs duaties. The Court of Magistrates found Galea guilty, a decision which was confirmed by the Criminal Court of Appeal.

The Plaintiff filed a constitutional action, claiming that his right to a fair hearing was violated when he answered questions to the customs inspector and made declarations without the assistance of an advocate. He argued that although no declaration taken during his questioning with the customs officials was presented in the criminal case, reference was made to such declarations, which, he argued, conditioned his own testimony before the Court of Magistrates in the criminal case.

The Constitutional Court did not uphold this claim. Firstly, the Constitutional Court considered that it was Galea himself who decided to give testimony on such declarations, which directed the court to inquire further on the statements made by him with the customs inspector. The Court further considered that the right to legal assistance whenever a person is suspected of an offence is a procedural right, and thus statements and declarations made without legal assistance are generally considered to be procedurally flawed.

However, the lack of legal assistance does not automatically impinge on the right to a fair hearing, and due consideration must be made to the criminal proceedings as a whole and on a case-by-case basis. The Constitutional Court considered that notwithstanding the fact that the customs inspector had asked him questions relating to the consignment, it was Galea himself who declared that the pellets consisted of cigarettes and not what was declared on the airway bill.

The Court considered that Galea’s declaration was not the result of a vulnerable position within which he found himself in, but rather it was his own conscious and voluntary decision to approach the customs officials and reveal self-incriminating information.

When he revealed to the Customs Officials what was truly in the consignment, he was not yet a suspect, and thus declarations made at that stage could not be considered declarations made at the pre-trial stage.

The Court considered the plaintiff’s application as vexatious and ordered him to pay double the judicial costs. Notwithstanding this clear and pronounced judgment, the distinction as to whether a person is deemed to be a suspect and thus granted with the protections of the right to a fair hearing, may not always be clearly demarcated.

The Strasbourg Court has repeatedly declared that access to legal representation should be provided upon the first interrogation; however, the European Court of Human Rights has qualified what form of questioning is subject to the right of a fair hearing. In Bandaletov vs Ukraine, a witness who was not considered to be a suspect at the time of questioning, confessed to the crime. The European Court of Human Rights considered that as the police had only regarded the witness as a suspect upon his confession, the right to legal assistance incurred from the moment of confession and not prior.

This did not render that confession as inadmissible evidence given that such confession was maintained even during interrogation while being legally assisted.

The Constitutional Court in the Francis Xavier Galea case, apart from clarifying what is considered to be a suspect deserving the right to legal assistance, further clarified that when examining a violation of the right to a fair hearing for statements made without legal assistance, it is essential to study the trial as a whole, the relevance of such statements, and the overall impact that those statements have upon the eventual attribution of guilt.

The court clearly pronounced that when a person renders himself a suspect through disclosing self-incriminating evidence, no violation of the right to a fair hearing can subsist.