Communicated on 29 January 2019
THIRD SECTION
Application no. 38161/15
Daniel Alexander HOLMES
against Malta
lodged on 30 July 2015
STATEMENT OF FACTS
The applicant, Mr Daniel Alexander Holmes, is a British national, who was born in 1978 and was at the time of the introduction of the application serving his prison sentence. He is represented before the Court by Dr F. Debono, Dr M. Spiteri and Dr A. Cachia, lawyers practising in Valletta.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
On 19 June 2006 when found with a joint in his hand, the applicant led the police to his apartment and showed them the plants he was cultivating. On that day, when the applicant’s house was searched the police found some cannabis plants being cultivated and others being dried (1.063 Kg ‑ 32 plants in all), as well as 0.24 grams cannabis blocks (raża), of a value of around 11,700 euros (EUR) [later recorded as EUR 13,802].
On 20 June 2006 the applicant gave a statement to the police, without the assistance of a lawyer, where he explained that the cannabis was for his personal use, and that he had made his own equipment with no one’s help. On the same day the Attorney General (AG) ordered that the applicant be tried by the Criminal Court.
On 21 June 2006 the applicant was brought, under arrest, before the Court of Magistrates (Gozo) as a Court of Criminal Inquiry. The applicant was charged with cultivation and importation of cannabis as well as possession of the same not for his exclusive use, under the provisions of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta). A legal aid lawyer was appointed to assist him. The applicant pleaded not guilty and was released on bail.
Later, during the committal stage, i.e. the stage of hearing the evidence before a magistrate, the applicant was represented by a lawyer of his choice, who then renounced his mandate on 9 July 2007. He was replaced by a legal aid lawyer until 11 September 2008 where the applicant informed the court that he would be represented by a lawyer of his choice.
During the committal phase the applicant made a statement, including, that he had brought some cannabis seeds with him from England.
On 18 January 2010 the AG issued the indictment.
2. The Trial
On 18 November 2010 the Criminal Court appointed a jury for 9 December 2010. On that date the applicant was represented by a lawyer of his choice, however the hearing was postponed.
The jury reconvened on 21 November 2011 and the applicant entered a guilty plea.
(a) First-instance
By a judgment of 24 November 2011, the Criminal Court found the applicant guilty of the charges against him and sentenced him to ten years’ and six months’ imprisonment and a fine of EUR 23,000 as well as the forfeiture of all the property involved in such crimes.
The Criminal Court reached its conclusion after having seen i) all the records of the case, including those of the compilation of evidence before the Court of Magistrates as a Court of Criminal Inquiry; ii) that in the sitting of 21 November 2011, in reply to the question as to whether he was guilty or not guilty of the charges preferred against, the accused stated that he was pleading guilty thereto; iii) that the court then warned the accused in the most solemn manner of the legal consequences of such statement and allowed him a short time to retract it according to Section 453 of the Criminal Code; iv) that the accused being granted such a time, persisted in his statement of admission of guilt. In assessing punishment the court considered other cases where a guilty plea had or had not been made as well as cases concerning a similar amount of drugs but considered that every case had to be seen on its own merits. It also took into consideration the applicant’s pleas to the effect that he was a drug addict who had since then settled down and had a three year old daughter as well as the prosecution’s pleas to the effect that the situation was one when the applicant was planning to traffic the produce and indeed was paying a considerable rent without being employed.
(b) Appeal
The applicant appealed against the punishment. In particular he considered that the cultivation was a joint venture between the applicant and another person (who had committed suicide in detention and thus could never testify), so only half the produce should have been taken into consideration. Moreover, he had been unemployed so he could only satisfy his addiction by cultivating the plants himself. He further referred to a series of judgments concerning stronger drugs and larger quantities where lower sentences and fines than those meted out to the applicant had been given. The applicant reiterated that he had surmounted his addiction and now had a daughter and a job. Lastly, he noted that in their plea bargaining discussions which were not conclusive the prosecution had not requested more than eight years imprisonment.
The judgment was confirmed by the Court of Appeal on 12 February 2014, which found no reason to disturb the discretion applied by the first‑instance court considering the quantum of punishment which fell within the parameters of the law. The Court of Appeal carefully examined the evidence produced during the committal stage and the only evidence as to applicant’s use of cannabis came from his statement wherein he admitted to smoking cannabis and that the plants he was growing were for his personal use. It considered therefore that his claim that he “lived to smoke cannabis” was merely an unproven allegation. Indeed, the quantity of cannabis found in his residence was more than just a simple domestic operation for self‑consumption. The police found plants in various stages of development and necessary lighting paraphernalia to ensure a healthy growth out of the sight of prying eyes and cannabis grass packed in separate packages, which would not have been required if all the cannabis grass in the flat was meant for his personal consumption. It further considered that the applicant’s allegation that a certain B. had also been involved, contrasted with his statement to the police, which the applicant did not contest, neither in respect of its legality, voluntariness or content. Indeed the applicant admitted to the accusation brought against him. Furthermore, he could not expect a reduction of punishment solely because he had not resisted the police. The Court of Appeal also considered that comparisons with other cases were inappropriate and that it was not bound to follow any sentence indicated by the parties. Having examined the remainder of the applicant’s arguments it reiterated that the applicant had pleaded guilty to very serious offences.
3. Constitutional redress proceedings
The applicant lodged constitutional redress proceedings. Relying on Articles 6, 7 and 14 of the Convention, he complained about: a lack of legal assistance during the pre‑trial investigation; that during the collection of evidence stage (kumpilazzjoni) before the court of magistrates, a legal aid lawyer without any experience of criminal law and paid by the prosecution, had been appointed to assist him; the power of the Attorney General (AG) to decide in which court he would be tried, with the consequence this had on punishment; discrimination in connection with the application of such power in his case; an unfair trial on the basis of procedural irregularities; a lack of a trial within a reasonable time; and a lack of proper review of his punishment by the Criminal Court of Appeal. He further complained about a lack of legal certainty and the application of a punishment without law in connection with the fact that the offence of ‘trafficking’ encompassed “cultivation for exclusive personal use” ‑ in his view since the law did not provide for cultivation for personal use (as suggested in the United Nations Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988) he could not be punished for such crime. Moreover, since the law did not distinguish between cultivation for personal use and that for trafficking, the legal provision left extremely wide latitude in respect of punishment, failing the foreseeability requirement under Article 7 as well as the principle of legal certainty.
(a) First-instance
By a judgment of 3 October 2014 the Civil Court (First Hall) in its constitutional competence found a breach of the applicant’s rights under Article 6 in relation to the delay in the proceedings and Article 7 concerning the AG’s discretion and dismissed the remainder of his claims. It awarded EUR 7,000 in compensation.
The court confirmed that Maltese law at the relevant time did not allow a suspect to consult with a lawyer before making a statement, even to date it did not allow for the assistance of a lawyer during the statements. It referred to ECtHR case‑law as well as domestic case-law, but considered that in the present case, the Criminal Court had not relied on the statement the applicant had made to the police on 21 November 2011 but on that which he had made before the Criminal Court, namely his guilty plea. Moreover, at no stage in the criminal proceedings had he objected to the admissibility of that statement or withdrawn his statement, nor did he say that he had been threatened or promised rewards; had a jury been in place, his statement would not have been the only evidence ‑ indeed the police had stopped the applicant who was exiting his residence and on searching the residence it had found a room where cannabis was being cultivated and another room with a box full of dried cannabis; on appeal the applicant kept on insisting that the drugs found were for his own personal use, thus repeating what he had said in the initial statement. It followed that his complaint concerning a lack of legal assistance was ill‑founded.
As to his complaint concerning legal aid, relying on Croissant v. Germany, (25 September 1992, Series A no. 237‑B) the court noted that such right did not imply a right to choose the legal representative. While it was true that the legal aid system in Malta had failings which had to be addressed, including the drawing up of two different lists of lawyers according to their specialisation, the fact that such lawyers were paid a fixed sum from the AG’s office, every three months, did not mean that they were not independent of that office, although it would have been better had there been no link at all. As to the present case the applicant had not pointed to any deficiency by the legal aid lawyer which could have adversely affected him. Moreover, the lawyer had experience in both civil and criminal law, and had only defended the applicant for about a year (out of seven), during the collection of evidence stage, and during such period there had been no failings, nor had the applicant asked for him to be substituted.
As to the complaint under Article 7 concerning the AG’s discretion, it had already been established in local and ECtHR case‑law that such circumstances where in breach of Article 7, as was in the present case. However, according to domestic case‑law, the same circumstance did not amount to a breach of Article 6. Furthermore, there could be no discrimination in the absence of an identifiable characteristic which the applicant had failed to identify. While it was true that case‑law showed a discrepancy in sentencing concerning similar amounts of drugs, the latter was not the only consideration in delivering punishment.
As to the procedural irregularities the applicant had failed to raise these complaints during the criminal proceedings.
In so far as the applicant complained about the interpretation of Article 22 (1B) of Chapter 101 of the Laws of Malta concerning cultivation, the court noted that while on 21 November 2011 the applicant had declared that the drug was for his own personal use, on 21 November 2011 he had changed his position and entered a guilty plea. Thus, he could no longer complain about that provision of law.
The court, however, found a violation of Article 6 in connection with the excessive delay of the proceedings (seven years).
Lastly, the court found that the Court of Appeal had examined the arguments set out by the applicant and the punishment meted out to him and considered that it was just, there was therefore no reason for the constitutional jurisdiction to enter into the matter as a third court.
(b) Appeal
Both the AG and the applicant appealed (each in respect of the parts in which they had been unsuccessful – however the applicant did not appeal the findings concerning the procedural irregularities and the review of the Court of Appeal). The applicant did not reply to the appeal by the Attorney General.
By a judgment of 16 March 2015 the Constitutional Court upheld the Attorney General’s appeal in its entirety and dismissed that of the applicant, thus it revoked the first‑instance judgment in the parts where it had upheld violations, and confirmed the remaining.
While referring extensively to the ECtHR’s findings in Camilleri v. Malta (no. 42931/10, 22 January 2013) which had found a violation of Article 7 in analogous circumstances, the Constitutional Court nonetheless considered that in the present case, given the circumstances, in particular, the fact that the applicant had a substantial production line clearly aimed at distribution, it could not be said that he could not have known that he would have been tried by the Criminal Court and therefore which punishment bracket would have applied to him.
As to the length of proceedings having examined the three stages of the proceedings separately, it considered that there had been no unreasonable delay. Thus, no compensation was due to the applicant.
The Constitutional Court considered that the lack of legal assistance could not in itself result in a violation of Article 6. The fact that the applicant had not been legally assisted when he gave his statement to the police did not prejudice his defence – indeed in that statement he had said that the drugs were for his exclusive use and it was only later, after having consulted a lawyer, that he admitted before the court that the drugs were not for his personal use but for the purposes of trafficking, after having been given time to consider his guilty plea. In the light of his confession before the court and the fact that he had been caught red‑handed, his statement given to the police was irrelevant. Moreover, there was no evidence that the applicant had been vulnerable, or that his statement had been take abusively or with the use of threats or promises.
As to the complaint concerning legal aid, it had been set out in a generic way against the system in place. The applicant had not indicated in what way the service provided to him had been deficient. The applicant had been assisted by two legal aid lawyers; the first had successfully obtained bail for the applicant on his first appearance in court. After that he had obtained the services of counsel of his own choosing until 9 July 2007, and after that date he was again assisted by a legal aid lawyer, who also had experience in criminal law, until 11 September 2008. Having examined the acts of the proceedings the court found that during such time, there had been no deficiency, nor any particular development which could have prejudiced the applicant’s position. Moreover, during such time, neither the applicant nor the consular representative of the United Kingdom, had complained about any deficiencies in the applicant’s defence. The Constitutional Court further noted that the appointment of remuneration of the legal aid lawyer was not subject to the discretion of the AG and thus was not subject to any influence. The fact that remuneration was paid from the budget of the Attorney General did not affect the lawyer’s independence.
The Constitutional Court also found that according to domestic case‑law there was no violation of Article 6 in connection with the discretion of the AG, given that Article 6 concerned the independence and impartiality of the court during the trial, and not the pre‑trial decision taken by the relevant authority to bring the applicant before a court. It confirmed the first‑instance reasoning concerning a lack of any apparent discrimination in the applicant’s case.
As to the applicant’s complaint that according to law cultivation of a certain amount of cannabis automatically implied trafficking, the Constitutional Court reiterated that the applicant had pleaded guilty (after the charges were explained to him, after he has had legal assistance and after an opportunity to retract) to possession of drugs “with the intent to supply the same in that such possession was not for the exclusive use of the offender”. In any event under domestic law, cultivation was a crime, be it for personal use or not and Article 22 (1B) was explicit in stating that trafficking included cultivation. In the Constitutional Court’s view this complaint was frivolous.
B. Relevant domestic law
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.
The relevant domestic law and practice in connection with the discretion of the Attorney General in connection with the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, is set out in Seychell v. Malta, (no. 43328/14, §§ 18-23, 28 August 2018).
COMPLAINTS
The applicant complains under Article 6 of the Convention that he did not have a fair trial as a result of the lack of legal assistance when he released a statement to the police.
He also complained under Article 6 about the length of the criminal proceedings.
Relying on Articles 6 and 7 the applicant complained about the discretion of the Attorney General to decide in which court he would be tried with the consequence that had on punishment.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair trial in accordance with Article 6 §§ 1 and 3 (c) of the Convention, in particular as a result of the lack of assistance of a lawyer during the pre‑trial stage of the proceedings (see Beuze v. Belgium [GC], no. 71409/10, 9 November 2018)?
2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. Having regard to the discretion of the prosecutor to choose the Criminal Court for the trial of the criminal charges against the applicant and thereby render the applicant liable to a higher range of punishment than if tried in the Court of Magistrates, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?
4. Has there been a violation of Article 7 of the Convention? In particular, having regard to the prosecutor’s discretion to choose the punishment bracket applicable to the same offence, can it be said that the offence with which the applicant was charged, and the relevant penalty, had been clearly defined by law (see Seychell v. Malta, no. 43328/14, 28 August 2018)?
5. The Government are requested to provide the full text of the applicant’s statements made before and during the trial.
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