CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 juin 2019

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MALTA   (Application no. 63041/13)                     JUDGMENT         STRASBOURG   4 June 2019     FINAL   07/10/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Farrugia v. Malta, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georgios A. Serghides, President,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Helen Keller,   Branko Lubarda,   María Elósegui,   Erik Wennerström, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 7 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 63041/13) 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 Carmel Joseph Farrugia (“the applicant”), on 30 September 2013. 2.     The applicant was represented by Dr J. Brincat, Dr J. Vassallo and Dr   G. A. Buttigieg, lawyers practising in Malta. 3.     The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 4.     The applicant alleged that he had suffered a breach of Article   6   §   1 read together with Article 6 § 3 (c) of the Convention given the absence of a lawyer during questioning at pre-trial stage. 5.     On 10   November 2015 notice of the complaint under Article   6   §   1 read together with Article 6 § 3 (c) concerning the absence of a lawyer during questioning was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1951 and lives in Paola. Background to the case 7.     On 29 January 2002 a hold-up in the applicant’s business premises (a showroom), while he was present, was reported to the Police. The Police suspected that this was not a case of a real hold-up but of fabrication of false evidence. The pre-trial stage 8.     On an unspecified day, shortly after the incident, the applicant gave statements to a court expert. He explained that four individuals had entered the premises, tied him up, and stolen money, amongst other things. 9.     A.F., an employee of the company, told the police that he had tied the applicant to a chair with tape and that he had put a suitcase next to the entrance of the showroom, as requested by the applicant. He also stated that he accepted to help the applicant move a photocopier (which had been found overturned on the floor) and that he had seen the applicant put the server of a computer network system under the sofa of a room on the second floor, and the video recorder and the safe-deposit box in other places. 10.     Subsequently, on 1 February 2002 at 6.00 pm, the police questioned the applicant in the absence of a lawyer. He was cautioned i.e. he was informed of his right to remain silent and that everything he would say would be put down in writing and could be used as evidence against him. During the interrogation the applicant confirmed to the Police the statement he had given to the expert, noting that something had been done behind his back. In reply to questioning, he stated that another person had the keys to his showroom and that he had not seen a server of a computer network system, neither a video recorder connected to CCTV cameras nor a safe ‑ deposit box (which had allegedly been stolen on 29 January 2002) and which were found by the police on 1 February 2002. Confronted with A.F.s version of events, the applicant stated that that was A.F.’s allegation. The applicant stated that he had nothing to do with the items mentioned or with what A.F. said they had done together. Thus, it was irrelevant to consider as a coincidence or otherwise the fact that the police had found the things in the places where A.F. had indicated they would be. The applicant repeatedly stated that he had no difficulty reiterating his version of events, if and when it was needed, should they go to court. When invited to repeat his version of events on the spot the applicant requested that his statement be tape ‑ recorded and his request was acceded to. He confirmed that his statement had been made freely and without threats or promises. The questioning session ended at 6.43 pm. 11.     He was then moved to another room at 7.50 pm to record his detailed statement of events (a 38 page transcript). The applicant gave his particulars, was cautioned and recounted in great detail his version of the events of 29 January 2002. Following that, the applicant was asked questions about his business. In particular he noted that he had no reason to make up such a plan and that it would have been foolish of him to throw out ( narmih ) his business. The applicant was unable to quantify how much profits he was making, questioning which companies were making profits at the time. He avoided replying to a question concerning any losses and insisted that it was irrelevant whether or not he was making profits, as he had saved up the profits he had made in previous years. The applicant could not recall when he last imported products, but he replied that the last time he had exported was ‑ if he remembered well ‑ in December, probably towards Dubai but he could not remember the value of the transaction. On being asked again, he replied that he probably last imported in December, but was unable to give any details. He stated that local business was doing better than exports, but he was unable to quantify his profits. Upon repeated questioning he replied that during the same year he had made a loss. The applicant denied that he was not doing well also on the local market and was hesitant to accept that his business was facing a downfall. The applicant claimed to have had 70,000 United States dollars (USD) in the safe ‑ deposit box which had been stolen. He admitted that neither on the day of the hold ‑ up nor earlier that day (1 February 2002) had it been possible to open the safe ‑ deposit box (found by the police officers). The applicant admitted dealing in thousands of Maltese liras (MTL), but denied that his last import was more than three months before, although he admitted it could have been in November. He admitted that the photocopier which had been found overturned on the floor had not been working for more than two years; adding that it was moved recently to where it was found only because he adjusted its settings and made it work. He admitted that the repairs had been estimated at MTL   280 (approximately 650 euros (EUR)), but it happened that he knew how to operate it. A series of questions ensued concerning the photocopier. The applicant then admitted that the items allegedly stolen (the safe ‑ deposit box, the server and the CCTV recorder) were found earlier at the premises (on the same day ‑ 1 February 2002) and he insisted that if the police were to watch the CCTV video, they would see the four men. A series of questions concerning the functioning of the CCTV and the movements of A.F., his only employee, ensued, as well as a series of questions concerning the details of the actual robbery, the money stolen, i.e. allegedly USD   70,000 which were in the safe ‑ deposit box and MTL   34,000 (approximately EUR   79,000) which were in a suitcase and other cash from his wallet. The applicant stated that he could provide some paper invoices in connection with some of the money. The police questioned why he had said the opposite earlier, i.e. that he could not provide proof in the absence of the server which had been stolen. Again questioned about his profits, the applicant was unable to say how much profit or sales he made on a daily basis, admitting that it had been a long time since he had made MTL   100,000 (EUR 233,000) a day. He was also unable to give details about the local sales and admitted that he had problems with the bank. A series of questions and answers concerning A.F., and in particular how he was paid his monthly salary, ensued. At a point A.F. was also brought to the room for questioning in the presence of the applicant. Throughout the questioning the applicant repeatedly reiterated that he was not insured for theft of cash, but in as far as he recalled only for theft of apparatus. On further questioning he could not remember details of his insurance policy. The applicant stated that he had more money than he owed the bank, but did not know how much exactly he owed in payment of rents for various properties he had on the island. In any event he declared that he could pay such rent as the bank had recently reopened his accounts. The questioning ended with a series of factual questioning concerning the events on the day of the alleged robbery. 12.     On 2 February 2002 at 10.28 a.m. the applicant made another statement to the police, after being cautioned and in the absence of a lawyer. He confirmed that the police had, on the previous day, seized a video recorder (of the brand GYYR) and a video tape which was in it, and that upon the applicant’s request, the police, the applicant and the court ‑ appointed expert had viewed the content of the video tape together that same evening. He confirmed that the video recordings showed that it started on 9 October 2000 and ended on 24 October 2000, and that he had requested the viewing of the video for the police to confirm and see the four individuals who had robbed him. However, it had not shown the four persons who robbed him. The applicant explained that he could not confirm that the video recorder was the same one connected to the system, and the second tape inside it was surely not the same type that recorded the events of 29   January 2002. He could not remember how many video recorders of the brand GYYR he possessed noting that the new ones used to be in the stores and others could be in the repair room or in another room. He answered that when the previous day, on site, he had replied to the police that he had no idea where the video recorder would be, he had done so because he had no video recorder except for that attached to the system which had been stolen. When the police pointed out the inconsistency with his previous answer the applicant replied that he had been speaking about the repair room. When he was asked whether the CCTV worked, the applicant had responded that the last time he had needed to check something (at Christmas time), it had been functioning properly. He confirmed that he did not know where the things were located and, in his view, this had been a frame up against him or against his company, by someone close to him or someone who had worked for him, or a competitor. The questioning was concluded at 11.16 am. The criminal proceedings 13.     On the same day i.e. 2 February 2002 the applicant was brought before the Court of Magistrates, as a Court of Criminal Inquiry, together with his employee A.F. They were charged with fabrication of false evidence, simulation of offence, fraud relating to insurance and making a false statement under oath under Articles 110 (1) and (2), 295 and 108 of the Maltese Criminal Code, Chapter 9 of the Laws of Malta. The applicant was also charged with being a recidivist. 14.     On an unspecified date, upon a request by the prosecution of 7   October 2002, the case of the applicant was separated from that of his employee A.F. in order for them to be judged separately. On 30 June 2003 A.F. was found guilty of simulation of an offence. On 2 April 2004 the Court of Criminal Appeal confirmed the judgment against A.F. 15 .     On 19 May 2006 A.F. gave evidence in the criminal proceedings against the applicant. He testified that the applicant, who was his employer, had forced him to tie him (the applicant) to a chair. On the applicant’s insistence he had done so for fear of losing his job. He had tied him to a metal chair brought by the applicant himself. He had left the shop at around 2.30   p.m. and when he returned the applicant had told him what to do and where to call and who to call in a particular sequence. The applicant’s son had arrived at around 3.30 p.m. to help him open the shutter; the applicant pretended to cry and told them to call the police. When A.F. had been asked whether the applicant ever told him why he had wanted to be tied, A.F. replied that the applicant had repeatedly noted that he had to close business, and on the day in question he had said “otherwise I will have to close”. 16.     On 23 January 2007, the Court of Magistrates, as a Court of Criminal Judicature, on the basis of the evidence in the case ‑ file, found the applicant not guilty of all the charges brought against him and acquitted him. It noted that there were two diametrically opposed versions (the applicant’s and A.F.’s), there was therefore a reasonable doubt which had to be resolved in favour of the applicant. 17.     On 6 February 2007 the Attorney General (hereinafter the AG) appealed against that judgment. 18.     By a judgment of 21 June 2007, the Court of Criminal Appeal varied, in part, the judgment of the Court of Magistrates. 19.     It confirmed that there had not been any evidence concerning the charges of fraud relating to insurance and making a false oath, as well as concerning the charge of recidivism. The Court of Criminal Appeal noted that the applicant had consistently repeated during the interrogation that his insurance did not cover theft or money losses, and no proof had been adduced to discredit his statement to that effect. Nor had the applicant lied on oath as he had never made any statement before a judge or magistrate and neither had the prosecution submitted any judgments capable of showing recidivism in terms of law. Similarly, the charge of fabrication of false evidence had also not been proved, since no matter what the applicant had actually done, there had been no proof that he had done so with the intention to put the blame on an innocent third person. 20.     However, the Court of Criminal Appeal found the applicant guilty of simulation of an offence under Article 110 (2) of the Criminal Code. It considered that there was direct evidence against the applicant, namely that from his accomplice (A.F.), who testified in the proceedings against the applicant (see paragraph 15 above). As to the testimony of an expert in relation to certain computer programs, found in the applicant’s possession, the Court of Criminal Appeal considered that they had not shed any light on the alleged hold up per se . However, it also noted the witness testimony of the four police officers who had questioned the applicant and carried out investigative work, including searches on the site of the alleged hold ‑ up. 21.     The Court of Criminal Appeal noted that in his first statement the applicant had denied the facts as submitted by A.F. and gave his version of the events of that day. He had stated that he was ready to repeat his version in court and that he had no difficulty to repeat it and to have it recorded on tape, as the applicant had requested. The applicant was then questioned in an interviewing room where he gave his detailed version of the alleged hold ‑ up, which was transcribed. The applicant was then confronted with A.F., who had said that he acted according to the applicant’s will because he was forced to. A long series of questions ensued, where the police enquired about whether the applicant had been insured for the theft of money, the rent he paid, as well as about where and how certain items had been found, after having previously said that they had been stolen or thrown on the floor. 22 .     The Court of Criminal Appeal further noted that in his subsequent statement the applicant said that the video he had watched with the police officers had started on 9 October 2000 and ended on 24 October 2000. He could not confirm whether the video recorder was the same one which had been included in the system but he considered that the second tape inside was surely not the one he was recording on, on 29 January 2002. He did not know how many videos of the brand GYYR he had. According to the applicant the new ones used to be in the stores and others could be in the repair room or in another room. The Court of Criminal Appeal noted that the applicant had not mentioned any of this a day earlier, as according to the applicant he had no GYYR video except for the one included in the system. When he had been asked whether the CCTV worked, the applicant had responded that the last time he had needed to check something (at Christmas time), it had been functioning properly. He confirmed that he did not know where the things where and, in his view, this had been a frame up against him or against his company, by someone close to him or someone who had worked for him, or a competitor. 23.     The Court of Criminal Appeal noted that the applicant had also testified before the first ‑ instance court about his local and international projects as well as the events of the day at issue. He had explained as follows: 24.     A certain P.M.D. had left the shop at around 1.40 pm and, after that, two people wearing motorcycle helmets came into the shop and demanded money of him. He gave them his wallet which contained more than MTL   1,000 (around EUR 2,300) and they had said that they wanted more. The applicant then gave them a suitcase with money in it, once they opened it they asked for the safe-deposit box while pointing a gun at the applicant’s throat which left him speechless. They went downstairs; the applicant noticed that one of the two men knew his way. The applicant opened the wardrobe in which he kept a small safe-deposit box that he carried with him nearly every day and which weighed around fifteen kilograms. The men asked him to open it but he could not; thus one of the men took it and they then went back upstairs where the two men tied the applicant to a chair they had brought with them. He was tied with tape and could barely breathe. One of the two men went back downstairs and the applicant heard a loud noise. They then went back upstairs by which time there were four of them – the applicant had already noticed the other two men downstairs – and they started to close the curtains and the shutter of the main entrance. From the inside he saw two motorcycles and their drivers wearing helmets as well as a white van. He claimed that all four men had been wearing identical outfits, white crash helmets with tinted visors, green gloves and jeans jackets. 25.     In cross-examination, the applicant claimed to have no suspicion about his employee (A.F.) who he did not want to harm. As to the latter’s version, the applicant replied that everyone was entitled to an opinion. A.F. had testified twice although only his last statement had been added to the file. P.M.D. testified that he had been with the applicant and had left early in the afternoon, before the alleged hold-up. 26 .     The Court of Criminal Appeal considered that since there had been no proof of an insurance policy covering theft of money, there had been no motive. However, it noted that A.F.’s version had been corroborated by, for example, the finding of certain objects in places indicated by A.F., which had been placed by the applicant himself, or by A.F. on orders from the applicant. Thus, according to the Court of Criminal Appeal, A.F.’s testimony was enough to conclude that the applicant was guilty of simulation of offence. It was true that the applicant had repeatedly and categorically denied any wrongdoing; however, he was not reliable in the light of the evasive and hesitant way in which he replied to police questions concerning his business, profitability, rents, and profits of the previous year. The Court of Criminal Appeal also relied on other circumstances such as the fact that the CCTV did not record the events on the day of the alleged hold ‑ up. Such details raised doubt and made the applicant’s version of events less plausible or acceptable. In the light of all the evidence it considered that the first court had wrongly acquitted the applicant. The Court of Criminal Appeal thus found the applicant guilty and sentenced him to one year’s imprisonment, suspended for four years. Constitutional redress proceedings 27.     On 15 June 2011, the applicant filed an application before the Civil Court (First Hall), in its constitutional competence, complaining about a violation of Article 6 of the Convention on the basis that, inter alia , the Court of Criminal Appeal’s judgment was based on statements given by the applicant to the police without the assistance of a lawyer. 28.     By a judgment of 29 October 2012, the court rejected the applicant’s complaints. The court recalled the first-instance judgment in the names of The Police vs Mark Lombardi (Civil Court (First Hall) in its constitutional competence, 9 October 2009) where it had been held that the mere fact that a person was not assisted by a lawyer during police interrogation did not violate an applicant’s fundamental rights. It had also held that for there to be a violation of Article 6 of the Convention, one must consider the proceedings as a whole and not the statements in isolation. The court noted, however, that the first ‑ instance judgment in that case had been overturned by the Constitutional Court which, on 12 April 2011, found a violation of the rights of the individual concerned as the lack of legal assistance deprived objectively the applicant of a fair trial. However, the Constitutional Court in that judgment had also made it clear that the ECtHR’s case ‑ law should not have retroactive effect and should not be applicable to judgments that had become res judicata – it had not been so in the case of Lombardi since proceedings had still been pending. The situation was different in the present case, which had ended. In conclusion, relying on the Constitutional Court’s position on res judicata in the case of Lombardi , cited above, the court, in the instant case, dismissed the applicant’s claim. 29.     On 16 November 2012 the applicant appealed to the Constitutional Court, arguing that the Civil Court (First Hall) was wrong in finding that courts of constitutional competence did not have the function to assess what had happened in criminal proceedings that had become res judicata . 30.     By a judgment of 5 April 2013, the Constitutional Court rejected the applicant’s appeal. 31 .     The Constitutional Court held that although there may be circumstances where it could provide a remedy if it found that a statement was taken abusively despite the criminal proceedings having come to an end and the judgment having become res judicata , in the present case the applicant had given his statement on 2 February 2002. He had never alleged that the statement was taken abusively. Moreover, he had not even raised this complaint when filing the constitutional application on 15 June 2011. It was only on 23 March 2012, more than eleven years after making the statement, that the applicant requested a correction in the constitutional redress application to add the complaint concerning his statement, possibly because the applicant had become aware of the Court’s judgment in Salduz v.   Turkey ([GC], no. 36391/02, ECHR 2008), of 27 November 2008, and realised that it could give him another means of defence. The Constitutional Court held that the fact that the applicant had never raised a complaint before the courts of criminal jurisdiction, when he had every opportunity to do so, was proof that he did not feel that this was of prejudice to him or that his statement was taken abusively. Thus, the applicant could not now, without abusing the judicial process, expect to reopen a closed case which had become res judicata , once he had not raised the issue previously. According to the Constitutional Court, it was also relevant that the Court of Criminal Appeal had not relied solely on the applicant’s statement, but also on other means of corroboration. Consequently, in the Constitutional Court’s view the applicant’s statement was not determinative to the finding of guilt and the first ‑ instance court had been right not to disturb a judgment which had become res judicata . RELEVANT DOMESTIC LAW AND PRACTICE Domestic remedies 32.     The relevant domestic law and case ‑ law concerning constitutional redress proceedings is set out in Brincat and Others v. Malta (nos.   60908/11 and 4 others, §§ 23-26, 24 July 2014) and Dimech v. Malta (no.   34373/13, §   26, 2 April 2015). Legal assistance during pre-trial investigation Domestic law 33 .     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 the pre ‑ trial investigation 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. 34.     Statements taken by the police could be confirmed on oath before the Court of Magistrates, after arraignment, in which case the person was entitled to be assisted by a lawyer. Domestic case-law (a)    Cases decided in 2011 - during the pendency of criminal proceedings against the complainants 35.     In the wake of the judgment in Salduz , cited above, a number of accused persons raised constitutional complaints during the pendency of the criminal proceedings against them and 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 Constitutional Court confirmed that it should apply the Grand Chamber judgment in Salduz 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. 37.     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. 38.     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. 39.     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. 40.     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 41.     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. The Police vs 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 42.     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. 43 .     The Constitutional Court stopped short of reiterating the court’s opinion in Alvin Privitera in relation to assistance during the actual interrogation. It however added that Salduz should not apply retroactively to cases which had become res judicata this was not so in the present case given that the proceedings were still pending. (b)    Subsequent cases 44.     Following the above ‑ mentioned judgments of 2011, the Constitutional Court abandoned the above described reasoning (to the effect that a systemic restriction resulted in an automatic breach of Article 6), and 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. By way of example: (i)   Cases brought before the constitutional jurisdictions while the criminal proceedings were pending against the complainant Charles Stephen Muscat vs the Attorney General , Constitutional Court judgment of 8   October 2012 45.     By a judgment of 10 October 2011 the Civil Court (First Hall) in its constitutional competence, dismissed an objection to the effect that the complaint was premature and found that the fact that the law precluded the accused from being legally assisted sufficed to find a violation. It thus ordered that his statements be expunged from the acts of the criminal proceedings. 46.     In reply to the AG’s argument that Mr Muscat had not raised his complaint earlier during the criminal proceedings (which were still pending) the court, relying on the Alvin Privitera case reiterated that the applicant was not subject to any time-limit to bring forward his complaint. 47.     On appeal, by a judgment of 8 October 2012 the Constitutional Court reversed the first-instance judgment. 48.     It accepted that prima facie it appeared premature to complain about a breach of the right to a fair trial due to a lack of legal assistance, solely on the basis of a statement made without such assistance at a time when a hearing was not yet held and the criminal proceedings were still pending. However, Maltese law (both the Constitution and the European Convention Act) provided for access to the constitutional jurisdictions in respect of fundamental rights complaints also when a breach is likely to occur. Thus, it could not reject the complaint as premature. 49.     As to the merits it considered that its role was to determine whether the statement given in the absence of legal assistance amounted to a breach of the applicant’s right given the trial as a whole, and whether there was a risk that the applicant be found guilty when he was in reality innocent. In the absence of such risk no breach would occur. Having examined the ECtHR case law from Imbrioscia v. Switzerland (24 November 1993, Series   A no. 275) onwards, it noted, with particular reference to Salduz , that in Maltese law, at the relevant time, no inferences from silence could be made. Mr Muscat had been informed of his right to remain silent. He was a mature adult, who was already expiating a criminal sentence in prison. He had made his statement in 2002 while he had been in detention since 1994. He had had experience with questioning and was not vulnerable. Thus the factor (young age) present in the Pullicino and Privitera cases was missing. 50.     The Constitutional Court further noted that Mr Muscat waited until 2010 to bring forward his complaint, and during such time he did not challenge the content of his statement. This signalled that he himself had not felt disadvantaged by the content of his statement. In any event Mr   Muscat was still to undergo trial with all the relevant procedural guarantees, and during which the judge could also decide to exclude the statement at issue if it could be shown that it had been given under threat or duress. It followed that the mere taking of the statement could not result in a breach of the right to a fair trial. The Republic of Malta vs Alfred Camilleri Constitutional Court judgment of 12   November 2012 51.     In the particular circumstances of the case, the Constitutional Court 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 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 Police vs Tyron Fenech , Constitutional Court judgment of 22 February 2013 52.     By a judgment of 23 January 2012, the Civil Court (First Hall) in its constitutional competence found, inter alia , a violation of the first applicant’s right to a fair trial, as he had not had access to a lawyer before and during the police interrogation which led to his statement of a specific date. The same applied in respect of his other statement under oath before the magistrate, if made while under arrest. It considered that a person had just as much a right to legal assistance before making a statement to a judicial authority as he or she did before making a statement to the police. 53.     The Constitutional Court reversed in part the first-instance judgment. Accepting that the case was not premature, and in the light of the criminal courts’ referral pending criminal proceedings against Mr Fenech, it found that the Mr Fenech’s right to a fair trial had been breached only in relation to the statement given to the police, but not the statement given before the magistrate, which could thus be admitted as evidence in the criminal proceedings against him. 54.     It considered that a breach of the right to legal assistance during interrogation would occur when a statement was obtained by abuse and not solely because there was no lawyer present. The right to legal assistance was intended to protect persons in particular situations of vulnerability, weakness or fear who as a result of which made statements which led to a finding of guilt despite their innocence. Legal assistance in such cases prevented any such abuse and counteracted the vulnerability of the individual concerned. 55.     Mr Fenech was only nineteen years of age at the time and may well have been vulnerable; however, someone other than a lawyer could have provided for such a guarantee, such as a magistrate (independent from the police), before whom the applicant made his second statement in accordance with domestic law. For these reasons the Constitutional Court upheld the Article 6 violation only in respect of the statement the applicant made to the police, which could not therefore be used in the criminal proceedings against him, but not in respect of the statement made before the inquiring magistrate, which could be used in the proceedings. 56.     Similar conclusions were reached in The Police vs   Amanda   Agius , Constitutional Court judgment also of 22 February 2013. The Republic of Malta vs   Carmel Camilleri Constitutional Court judgment of 22   February 2013 57.     Mr Camilleri raised his constitutional complaint ‑ about lack of assistance when he gave a statement at pre-trail stage - during the criminal proceedings against him, and the matter was referred to the constitutional jurisdictions. 58.     By a judgment of 26 June 2012 the first-instance court found a violation of Article 6 in that respect, on the basis of the Salduz judgment, as well as the Constitutional Court judgment in the Privitera case (cited above). 59.     On appeal the Constitutional Court reversed the first-instance judgment. It held that the right to a fair trial was violated when a statement was taken abusively and not merely because it was given without legal assistance. This had always been part of the right to a fair trial and had not been created by means of the Salduz judgment. Thus, any finding of a violation to this effect would not constitute a retroactive application of some new right created by jurisprudence. Relying on the Privitera case, it considered that it should not wait for the end of the criminal proceedings in order to examine the merits of the case. Moreover, in the present case, it was precisely the court hearing the criminal proceedings that had referred the matter to the constitutional jurisdictions, and that court had suspended proceedings awaiting this judgment. 60.     However, Mr Camilleri did not fall under any category of vulnerability. Furthermore, it could not be said that he had had no access whatsoever to a lawyer, indeed in his first statement he had denied all wrong doing and walked away free. Thus, before he was voluntarily called in for questioning the following days he had all the time necessary to seek the assistance of a lawyer before he appeared voluntarily on three subsequent days where he gave three statements. His statement had also been corroborated by other evidence, there was thus no risk that they were unsafe ‑ in that light it would not be appropriate to expunge such statements. (ii)   cases brought before the constitutional jurisdictions after the criminal proceedings had come to an end Simon Xuereb vs the Attorney General , Constitutional Court judgment of 28 June 2012 61.     The Constitutional Court considered that the case was different from the three 2011 judgments (mentioned-above) relied upon by the applicant, in so far as those cases had concerned proceedings which were still pending, while the case of Mr Xuereb concerned a judgment which had become final. 62.     The Constitutional Court noted that in 2001 Mr Xuereb 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, and yet he chose to make a statement. At the time Maltese law did not provide for the assistance of a lawyer and the Salduz judgment had not yet been delivered. It followed that Mr Xuereb could not complain about that matter. Moreover, the finding of guilt would not have been based solely on his incriminating statement, because there existed various other evidence. Furthermore, he chose to admit to the crimes and settle for a plea bargain. Thus, given his actions during those proceedings he could not now complain of a breach of his rights. It further referred to its established practice based on English case ‑ law to the effect that the retrospective effect of a judicial decision is excluded from cases that have been finally determined. Joseph Buġeja vs the Attorney General , first-instance judgment of an unspecified date in 2012 confirmed on appeal on 14 January 2013 63.     In its judgment the first-instance court of constitutional competence referred to the [then] recent judgments of the Constitutional Court and held that, firstly, the right to legal assistance was not created by recent jurisprudence of the Constitutional Court. The right existed already at the time when criminal proceedings against Mr Buġeja were still ongoing and if the latter had not invoked that right at the opportune moment, he could not invoke it almost two years after the final judgment of the Court of Magistrates. The court also noted that after Mr Buġeja released his statement he had had every opportunity to contest it. During the criminal proceedings he had only contested that his statement did not reflect the truth and he testified again to give another version which he claimed was the truth. At no point had he alleged that he had been coerced to sign such statement or that the statement had breached his fundamental human rights. Moreover, he had not even appealed the judgment of the Court of Magistrates. 64.     Secondly, the court also considered that the judgment handed down by the Court of Magistrates was not based solely or principally on Mr   Buġeja’s statement but on other circumstances which made his involvement in the crime evident. Further, the court referred the Lombardi case decided by the Constitutional Court which held that the jurisprudence of the ECtHR should not be applied retrospectively and affect those judgments which were today res judicata and it referred to the United   Kingdom jurisprudence which held that the retrospective effect of a judicial decision was excluded from cases that have been finally determined. Hence, the