CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2016

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MALTA   (Application no. 37537/13)                 JUDGMENT       STRASBOURG   12   January   2016       FINAL   12/04/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Borg v. Malta, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Boštjan M. Zupančič,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Egidijus Kūris, judges,   Anna Felice, ad hoc judge, and Françoise Elens-Passos, Section Registrar, Having deliberated in private on 24   November   2015, delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 37537/13) 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 Mario Borg (“the applicant”), on 28   May 2013. 2.     The applicant was represented by Dr D. Camilleri, Dr   M.   Camilleri 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 did not have legal assistance during the pre-trial investigation in his case in violation of Article 6 § 3 in conjunction with Article 6 § 1, and that he had suffered a violation of Article 6 § 1 as a result of conflicting constitutional pronouncements. 4.     On 22 October 2013 various aspects of the application were communicated to the Government. 5.     Mr Vincent A. De Gaetano, the judge elected in respect of Malta, was unable to sit in the case (Rule 28). Accordingly the President decided to appoint Mrs Anna Felice to sit as an ad hoc judge (Rule   29 § 1(b)). 6.     The applicant requested that an oral hearing be held in the case. On 24   November 2015, the Court considered this request. It decided that having regard to the material before it an oral hearing was not necessary. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1976 and is currently detained at the Corradino Correctional Facility in Paola. 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 pre ‑ trial investigations 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. B.     Criminal proceedings 9.     The applicant, at the time twenty-seven years of age, was arrested on 15   April 2003 on suspicion of importation and trafficking of drugs (heroin) in relation to two episodes in March and April 2003. On 17   April 2003 while under arrest and precisely during questioning, after being duly cautioned about his right to remain silent, the applicant, in the absence of a lawyer, gave a statement to the police, which however he refused to sign. 10.     In his statement he said that he regularly drove a white Ford Escort and that he was married to a Thai national. In reply to questioning, he stated that he did not remember his whereabouts on 3 March 2003 and that he did not know a certain N. and M. and three other Turkish nationals (K., R., and M.I.). Neither had he ever paid or received money from the aforementioned persons. He further stated that he had never made or received calls to and from Turkey. He denied having, on 4 March 2003, made contact with any foreigner in Paceville, or having received anything from M. or ever having made a phone call to two specific numbers shown to him by the police. He further denied having gone to Paceville with his wife in his car and making contact with M. on 5 March 2003; he also denied that on that day M. had given him heroin capsules in the presence of his wife. He claimed however to have gone to Paceville at 10 a.m. to look for a person who had stolen his car stereo. The applicant availed himself of the right to remain silent in respect of questions as to whether he had a drug problem, whether he had ever used heroin, and when was the last time he had done so. On being asked whether he had written the two names found on a piece of paper in his car and what was their purpose, he replied that he had himself written the two names but that he did not know the people and that he was unaware of the purpose of the paper, which had been in his car for a very long time. 11.     On the same day (17 April 2003) the applicant was arraigned before the Court of Magistrates as a Court of Criminal Inquiry (committal proceedings) and his above-mentioned statement exhibited as evidence against him. The prosecution also produced another two statements implicating the applicant, given by two prosecution witnesses (N. and M., two Turkish female drug couriers, mentioned above) who had also been arrested and investigated in connection with the same crimes, and who had also not been legally assisted during the police investigation into their case. 12.     In the meantime, on 15 April 2003 the duty magistrate (C.) had been informed that the applicant had been arrested, that a search had been carried out at his place of residence, and that certain items had been seized. Instead of proceeding herself to the spot to conduct the inquest for the purpose of the in genere inquiry ( inkjesta ), she appointed the police investigating officer to hold an on-site inquiry, and at the same time appointed a number of experts to assist him (see Articles 546 - 548 of the Criminal Code, relevant domestic law, paragraph 31 below). In their document of appointment, however, the experts were required to report their findings to her within three days. The following day she acceded to the Commissioner of Police’s request that she order the relevant telephone companies to give all the information requested in connection with the mobile phones seized in the course of the investigation. In the procès-verbal of 23 April 2003 no findings were reported by her, given that on 21 April 2013 the Commissioner of Police had requested the said magistrate to close the inquest since committal proceedings ( kumpilazzjoni ) had already started in respect of the applicant (see paragraph 9 above). All the relevant documents were attached to the procès-verbal and the record of the in genere inquiry sent to the Attorney General. 13.     The same magistrate (C.) was assigned (by lot) the case in the Court of Magistrates sitting as a Court of Criminal Inquiry. She eventually decided that there was enough evidence to put the applicant under a bill of indictment. The resulting bill of indictment was filed by the Attorney General on 14 June 2006. 14.     In consequence the applicant was tried by a jury and by a judgment of the Criminal Court of 16 January 2008 he was found guilty of importing, causing to be imported, or taking steps preparatory to the importation, of heroin between February and 15 April 2003; that between February and April 2003 he conspired with other persons to import, sell or traffic heroin, or promoted, constituted, organised or financed such a conspiracy; and that in the same period he had in his possession the drug heroin in circumstances which indicated that it was not for his exclusive use. The Criminal Court sentenced him to twenty-one years’ imprisonment and a fine of 70,000   euros (EUR). During these proceedings the applicant had objected to the statements made by N. and M. on various grounds, however these objections were withdrawn on 30 October 2006, apart from one objection concerning the inadmissibility of the results of the identification parade. 15.     The applicant appealed, claiming an incorrect application of the law (unrelated to legal assistance), a wrong assessment of the facts, and a disproportionate punishment. 16.     During the appeal proceedings the applicant requested the Court of Criminal Appeal to refer the case to the constitutional courts on constitutional grounds (different from those raised below). On 20 November 2008 the Court of Criminal Appeal found his claims to be frivolous and vexatious and rejected his request. 17.     By a judgment of the Court of Criminal Appeal of 19 May 2011 the applicant’s appeal was dismissed and the first-instance judgment confirmed (apart from a slight change in respect of the timing of the third charge). 18.     In so far as is relevant, the Court noted that the jury had had the advantage of seeing and hearing all the witnesses, and that the jurors had arrived at the conclusion that they should not rely on the version of events given by the applicant in his statement. The first issue which the jury had to decide was whether the two couriers (N. and M.) had made contact with the applicant in March 2003. In his statement to the police the applicant denied knowing the two women and other people mentioned by them, and also denied that he had made and received calls to and from Turkey. However, the two women identified the applicant as being the person they made contact with in March 2003, namely as the person who had given N. food, gloves, disinfectant and a laxative, and to whom M. had given the capsules they had carried in their stomachs. A number of factors gave credibility to the women’s identification of the applicant: (i) the circumstances of the meetings they had with him at which time he was using a white four-door car and was in the company of an Asian woman; (ii) the applicant’s statement that he habitually made use of a white four-door Ford Escort and that he was married to a Thai woman; (iii) the fact that when arrested N. and M. had separately identified the applicant in photographs; (iv) moreover, the two women had separately identified the applicant in identification parades supervised by a duty magistrate; and they did the same without hesitation when they testified, both during the committal stage and before the jury. In the light of all those factors the jurors could reasonably conclude that the person N. and M. had met in March 2003 and to whom they had delivered the capsules was the applicant. 19.     This having been established, the jury had to determine what the capsules delivered to the applicant contained and whether the applicant was connected to the delivery of April 2003 intercepted by the police. The experts had stated that the capsules contained heroin. The court rejected the applicant’s argument that the delivery of March 2003 concerned cannabis, given that studies showed that drug couriers were used in connection with heroin and cocaine and sometimes ecstasy, and that Turkey was considered a key transit route to Europe for heroin. 20.     It appeared from the evidence given by the two women that they had imported heroin in April 2003, which was the second time they had come to Malta. They had been forced to return in April since, in March, M. had lost most of the capsules she was carrying when vomiting on board the flight. The court considered that a recipient would expect to receive the full delivery, and that therefore it was logical for the supplier to force the courier to deliver what had been missing because of her fault. It followed that, from their testimony, it was reasonable for the jury to conclude that what N. and M. had carried in March 2003 was also heroin. The court considered that this was the only possible conclusion to be arrived at. Neither was it conjecture to conclude that the drug being carried in April was destined for the applicant. Indeed during the trial by jury M. had indicated the applicant as the recipient. The court rejected the applicant’s argument that he could not be the recipient because the women had referred to someone whose father had passed away, which was not the case for the applicant. It considered the relevant part of the statement by the women as hearsay evidence and in any event it was a statement which referred to a third person and not the applicant. 21.     The court further noted that on 15 April 2003, when the delivery was meant to take place, the police had seen the applicant drive around the area (at least three times) in his white Ford Escort, a short time before M. was arrested. Indeed the jurors had not believed the applicant’s version that he had gone to Paceville to look for someone who had stolen his car stereo. Moreover, the jurors could not have ignored that in his statement the applicant had denied any connection with Turkey, despite the fact that he could not explain the Turkish names written on a piece of paper which was found in his car and which he admitted he had written himself, and that N.   had testified that the applicant had spoken to a Turkish person on the telephone. 22.     The Court of Appeal decided that in the light of the above considerations and all the evidence produced, the jurors could legally and reasonably conclude that the applicant was guilty of the first and second charge, but only partly as to the third charge, since he had never received the delivery of April 2003. C.     Constitutional redress proceedings 23.     The applicant instituted constitutional redress proceedings, claiming a breach of his right to a fair trial (Article 6 § 3 (c)) on account of the lack of legal assistance during the investigation and interrogation, both in his respect and in respect of the witnesses who had also been under investigation, their statements having repercussions on his trial. He further complained that the same magistrate who had conducted the in genere inquiry was also the magistrate who had conducted the compilation of evidence in the committal proceedings. He requested a remedy including, but not limited to, a declaration that the criminal proceedings be cancelled and compensation paid. 24.     By a judgment of 4 June 2012 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claim. 25.     In respect of the statement made by the applicant on 17 April 2003 the court noted as follows: (i)   the applicant had not raised the issue before his criminal proceedings came to an end, and the judgment was now res judicata ; (ii) neither had he raised the issue in his referral request pending the criminal proceedings before the Court of Criminal Appeal; (iii)   the applicant’s statement was not determinant to finding him guilty: in his statement he had not admitted to trafficking in drugs or that he knew N. and M., and he had chosen to remain silent when questioned about drug use; (iv)   while it was true that the Court of Criminal Appeal had referred to extracts from his statement, this was not the basis of his conviction, which was based on the evidence given in court by M. and N. and on the results of the previous identification parades – indeed he had said nothing relevant in his statement. 26.     The court concluded that the proceedings having ended it had to look at the entirety of the proceedings, and it was not for it to substitute the findings of the jury. During the trial the applicant was represented by a lawyer and had ample opportunity to submit evidence and contest any evidence brought against him, and the fact that he did not have legal assistance during questioning did not have an irreparable effect on his right to defend himself. 27.     The court rejected the second complaint in relation to legal assistance for the witnesses, in so far as the applicant had no standing in that respect. Moreover, their statements had remained unchanged; the applicant could have challenged them during the trial but had opted not to do so. 28.     Lastly, in relation to the third complaint it held that the magistrate conducting the in genere inquiry was independent of the police, did not act as a prosecutor, and in the present case did not express an opinion as to whether there was sufficient evidence for the police to institute proceedings in respect of the applicant. The applicant’s case was also tried by a jury and then reviewed by the Court of Criminal Appeal. Furthermore, the applicant had not raised the issue in the committal proceedings in 2003 - indeed a comment somewhat related to the issue had been explicitly withdrawn on 30   October 2006 before the Criminal Court - and he should not therefore be allowed to benefit from his own passivity. 29.     By a judgment of 25 January 2013 the Constitutional Court dismissed the applicant’s appeal and confirmed the first-instance judgment, with costs against the applicant. It noted that a correct interpretation of Salduz v.   Turkey   [GC]   (no.   36391/02, ECHR   2008) had to be made in view of the circumstances of that case, where indeed Mr Salduz had been in a vulnerable position when he had made his statement. The rationale of the right was precisely that, and not to allow guilty persons to be let off scot ‑ free because of a formality which had no real or serious consequences. In the present case the applicant did not claim that he was forced to make the statement, or that he was in any other way vulnerable when he made his statement. The right to a lawyer was aimed at avoiding abuses, which in fact did not happen in the applicant’s case. Thus, while there was no procedural obstacle for the applicant to complain at this stage, namely before the constitutional jurisdictions, despite the fact that he had not raised the issue in the criminal proceedings, the element of vulnerability was missing in the applicant’s case, and thus there could be no violation of his rights. The Constitutional Court held that even if the statement had been determinant for the finding of guilt, that finding was not necessarily tainted unless the statement had been obtained under duress, which was not so in the present case. Nevertheless, in the instant case the statement was of no relevance whatsoever, as the applicant had not admitted to anything and the Court of Criminal Appeal had only referred to the statement in saying that the jury had not believed the applicant’s version. It had been other evidence that had led to his finding of guilt. Lastly, the Constitutional Court noted that it could not agree to a general view that the moment a statement was made without legal assistance it became ipso facto invalid and brought about a breach of Article   6. 30.     As to the complaint related to the witnesses, the court did not rule out the applicant’s locus standi , which could come into play if their statements had been made under duress. However, it was not so in the present case, where the witnesses had reiterated their statements even before the trial courts. It followed that those statements were also admissible. Lastly it confirmed the reasoning of the first-instance court relating to the impartiality of the magistrate, finding the applicant’s argument opportunistic. II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     The “in genere” inquiry ( inkjesta ) and the inquest 31.     The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows: Article 546 “(1) Saving the provisions of the next following subarticles, upon the receipt of any report, information or complaint in regard to any offence liable to the punishment of imprisonment exceeding three years, and if the subject-matter of the offence still exists, the state thereof, with each and every particular, shall be described, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated. For the purpose of any such investigation, an inquest on the spot shall be held: ...” Article 547 “(1) The inquest shall be held by a magistrate. ...” Article 548 “The necessary experts shall be employed for the purposes of the inquest, and a procès-verbal thereof shall be drawn up: ...” Article 549 “(1) The procès-verbal shall be signed by the magistrate or officer holding the inquest. (2) If the experts employed shall express their opinion in a written report duly confirmed on oath, such report shall be annexed to the procès-verbal and shall be deemed to form part thereof. (3) The depositions of witnesses examined at the inquest shall also be annexed to the procès-verbal . (4) Such depositions shall be taken in the manner provided for the examination of witnesses by the court of criminal inquiry, and shall have the like effect.” Article 550 (as amended in 2006) “(1) The procès-verbal , if regularly drawn up, shall be received as evidence in the trial of the cause, and the witnesses, experts or other persons who took part in the inquest shall not be produced to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry. (2) Nevertheless it shall be lawful for the Police to produce any of the persons mentioned in subarticle (1) to give evidence in the inquiry before the Court of Magistrates as court of criminal inquiry on specific issues and for the Attorney General to produce any of the said persons in accordance with the provisions of article   405. It shall also be lawful for the person charged to produce any of the said persons for the purpose of cross-examination . (3) The court shall also, for the like effect, have power to order the production of any expert or other witness who shall appear from the procès-verbal to have been examined at the inquest; and for such purpose any such expert or witness shall, in all cases within the jurisdiction of the Criminal Court, be included in the list of the witnesses of the Attorney General, to be, if necessary, examined. (4) All documents, however, and any other material object, in respect of which a procès-verbal has been drawn up, and which can be preserved and conveniently exhibited, shall always be produced at the trial, together with the procès-verbal . (5) The procès-verbal shall be deemed to have been regularly drawn up if it contains a short summary of the report, information or complaint, a list of the witnesses heard and evidence collected, and a final paragraph containing the findings of the inquiring magistrate.” Article 554 “(1) It shall be lawful for the magistrate to order the arrest of any person whom, at any inquest, he discovers to be guilty, or against whom there is sufficient circumstantial evidence, as well as to order the seizure of any papers, effects, and other objects generally, which he may think necessary for the discovery of the truth. It shall also be lawful for the magistrate to order any search into any house, building or enclosure, although belonging to any other person, if he shall have collected evidence leading him to believe that any of the above objects may be found therein. (2) It shall also be lawful for the magistrate to order that any suspect be photographed or measured or that his fingerprints be taken or that any part of his body or clothing be examined by experts appointed by him for the purpose: Provided that where the magistrate is of the opinion that such photographs (negatives and prints), fingerprint impressions, records of measurements and any other thing obtained from the body or clothing as aforesaid are no longer required for the purpose of the inquiry relating to the " in genere ", he shall order their destruction or shall order that they be handed over to the person to whom they refer. (3) In any proceedings under this Title the magistrate shall have the same powers and privileges of a magistrate presiding the Court of Magistrates as court of criminal inquiry.” B.     The inquiry - committal proceedings ( kumpilazzjoni ) 32.     The articles of the Criminal Code, Chapter 9 of the Laws of Malta, in so far as relevant, read as follows: Article 389 “In respect of offences liable to a punishment exceeding the jurisdiction of the Court of Magistrates as court of criminal judicature, the Court of Magistrates shall proceed to the necessary inquiry.” Article 390 “(1) The court shall hear the report of the Police officer on oath, shall examine, without oath, the party accused, and shall hear the evidence in support of the report. Everything shall be reduced to writing.” Article 401 “...(2) On the conclusion of the inquiry, the court shall decide whether there are or not sufficient grounds for committing the accused for trial on indictment. In the first case, the court shall commit the accused for trial by the Criminal Court, and, in the second case, it shall order his discharge. ...” C.     Legal assistance during pre-trial investigation 33.     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.” 34.     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. ...” D.     Domestic case-law 1.     Cases decided in 2011 35.     In the wake of the new law, a number of accused persons instituted constitutional redress proceedings during 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. 36.     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. 37.     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. 38.     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. 39.     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. 40.     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. 41.     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. 42.     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 40 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. 43.     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 domestic case-law) but denying trafficking, although he had mentioned facts which connected him to other persons involved in trafficking. 44.     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 [2010] UKSC 43, which concerned the same situation in the Scottish legal system and where that court had agreed to follow Salduz to the letter. 45.     The Constitutional Court added that Salduz should not apply retroactively to cases which had become res judicata. 2.     Subsequent cases 46.     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 assisted 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. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION 47.     The applicant complained under Article 6 § 3 in conjunction with Article 6 § 1 about the lack of legal assistance while in police custody in his case, contrary to the findings in the judgment of Salduz v.   Turkey   ([GC], no.   36391/02, ECHR 2008). Moreover, he complained that the lack of legal assistance to third persons who were called as witnesses against him also affected the fairness of his trial. He further complained under Article   6   §   1 about a lack of objective impartiality resulting from the system in place in Malta, in so far as the magistrate performing investigating functions, namely conducting the in genere inquiry, who collected the evidence was the same one who sat in the Court of Magistrates as a Court of Criminal Inquiry, and who decided in the present case that the applicant should be committed to trial. The provisions, in so far as relevant, 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;” 48.     The Government contested those arguments. A.     Lack of legal assistance to the applicant 1. Admissibility 49.     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. 2.     Merits (a) The parties’ submissions 50.     The applicant submitted that he had not been legally assisted when he was in police custody and during the interrogation because of a systemic restriction of access to a lawyer in the legal system. Despite amendments to the law in 2002, the law had not come into force. 51.     The applicant noted that the line taken by the courts and the Government in his case was that of this Court in the early nineties, particularly in the case of Imbrioscia v. Switzerland (24 November 1993, Series   A no.   275), and they failed to take into consideration the Court’s jurisprudential developments. He referred to the case of John Murray v.   the   United Kingdom , (8 February 1996, Reports of Judgments and Decisions 1996 ‑ I), and Magee v. the United Kingdom (no.   28135/95, ECHR   2000 ‑ VI) and subsequently to the case of Salduz [GC], cited above, particularly its paragraph 55. In the applicant’s view the latter judgment was continuously misinterpreted by the domestic courts, despite its principles being reiterated by the Court in other cases, such as in Pishchalnikov v.   Russia (no. 7025/04, 24 September 2009), where the Court found a violation despite the fact that the statement had not been the sole evidence. The applicant further referred to Dayanan v. Turkey (no.   7377/03, 13   October 2009) where the Court had found a violation on the basis that there was a systemic restriction on access to a lawyer (as in Malta), despite the fact that the applicant had remained silent during questioning. The applicant further referred to Yeşilkaya v. Turkey (no. 59780/00, 8   December 2009), Boz v. Turkey (no. 2039/04, 9 February 2010), Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, 21 April 2011) and Huseyn and Others v.   Azerbaijan (nos. 35485/05, 45553/05, 35680/05 and 36085/05, 26   July 2011), all of which confirmed the approach taken in Salduz (cited above). 52.     The applicant submitted that in the light of the current case-law, given the systemic restriction on access to a lawyer, all the arguments set out by the Government were irrelevant. 53.     The Government considered that the right to see ( sic ) a lawyer in the early stages of a police investigation was not absolute and could be subject to restrictions. They referred to the cases of Imbrioscia, cited above; John Murray, cited above; and Ahmet Mete v. Turkey (no. 77649/01, 25   April 2006), as well as Salduz (cited above). The Government, recapitulating the facts and findings in the case of Salduz , considered that in reaching its conclusion the Grand Chamber gave particular weight to the applicant’s age. The Government reiterated that the faithful interpretation of Salduz was that “a violation can only be found if the conviction of an accused person is solely based on incriminating statements that an accused made while being questioned, where the accused person was not given access to legal assistance”. In their view any other interpretation thwarted the logic around the judgment. The Government further referred to the facts and findings in Płonka v.   Poland (no. 20310/02, 31 March 2009); Aleksandr Zaichenko v.   Russia (no. 39660/02, 18 February 2010); Nechiporuk and Yonkalo (cited above); and Huseyn and Others (also cited above) and noted that in those cases the applicants were convicted solely on the basis of their statements in which the applicants had admitted wrongdoing. 54.     They submitted that in the present case the applicant was twenty ‑ seven years old, and the amount of drugs involved was 816 grams of heroin which was 47% pure, which had been transported to Malta by two couriers who had already been used by the applicant for this purpose. Other objects associated with drug importation and trafficking had been seized by the police from the applicant’s residence, such as telephones and a piece of paper with foreign names written on it. Other evidence besides his statement was collected and brought to the attention of the trial courts. Although the applicant chose not to sign the statement, he had voluntarily answered the questions put to him during questioning, he had been cautioned about his right to remain silent, and at no point was he threatened or coerced into giving a statement. Moreover, he answered some questions and refused to answer others, and categorically denied involvement in the drug transaction. Furthermore, the applicant was not a first offender, as according to his conviction sheet he had been arraigned on one previous occasion (concerning driving a modified car without a seatbelt). 55.     They were of the view that the Court found violations in cases where applicants were convicted on the sole basis of statements within which they admitted wrongdoing. This was not so in the present case. Similarly, the Court gave weight to the age of the victim to determine his vulnerability, and again in the present case the applicant was a mature person and was not intimidated by police officers. He understood what was being said and the consequences of his statements, enough to be able to choose which questions to answer; this showed he had understood the caution and its importance. Moreover, it was of particular relevance that, at the time of the present case, no inferences could be made from the applicant’s silence, and therefore in choosing not to reply the applicant was not in any way incriminating himself. Thus, the applicant had not illustrated what prejudice he had suffered, given that his conviction had been based on the totality of the evidence collected and was not solely based on his statement. The Government therefore considered that given the proceedings as a whole, there had been no violation of the applicant’s rights. (b) The Court’s assessment (i) General principles 56.     Early access to a lawyer is one of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008). 57.     The Court reiterates that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may 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 will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (see Salduz , cited above, § 55). 58.     Denying the applicant access to a lawyer because this was provided for on a systematic basis by the relevant legal provisions already falls short of the requirements of Article 6 (ibid., § 56). (ii) Application to the present case 59.     The Court observes that the post-Salduz case-law referred to by the Government (paragraph 53 in fine ) does not concern situations where the lack of legal assistance at the pre-trial stage stemmed either from a lack of legal provisions allowing for such assistance or from an explicit ban in domestic law. 60.     The Court notes that it has found a number of violations of the provisions at issue, in different jurisdictions, arising from the fact that an applicant