issued by the Registrar of the Court

ECHR 012 (2016)

12.01.2016

Lack of legal assistance during questioning in police custody made trial unfair

In today’s Chamber judgment¹in the case of Borg v. Malta (application no. 37537/13) the European

Court of Human Rights held: unanimously, that there had been a violation of Article 6 § 3 in

conjunction with Article 6 § 1 (right to a fair trial and right to legal assistance of one’s own

choosing) of the European Convention on Human Rights, and by a majority, that there had been no

violation of Article 6 § 1 in respect of an alleged lack of legal certainty concerning the constitutional

proceedings.

The case mainly concerned the complaint by a convicted offender of not having had any legal

assistance during questioning in police custody, resulting from the absence of any provisions under

Maltese law in force at the time allowing for legal assistance during pre-trial investigation and

questioning by the police.

The Court found in particular that Mr Borg had been denied the right to legal assistance at the pre-

trial stage as a result of a systemic restriction applicable to all accused persons. This fell short of the

requirement under Article 6 that the right to assistance of a lawyer at the initial stages of police

interrogation might only be subject to restrictions if there were compelling reasons.

Principal facts

The applicant, Mario Borg, is a Maltese national who was born in 1976 and is currently detained at

the Corradino Correctional Facility in Paola (Malta).

Mr Borg was arrested in April 2003 on suspicion of importing and trafficking heroin. During his police

custody he gave a statement without assistance by a lawyer, which was used as evidence against

him in the subsequent proceedings. In January 2008 he was convicted of, in particular, importing

heroin and sentenced to 21 years’ imprisonment and a fine of EUR 70,000. In May 2011 the

judgment was upheld on appeal. The appeal court found in particular that the witness statements by

two women who had been investigated on suspicion of being drug couriers and having delivered

heroin capsules to Mr Borg were credible in the light of, among other things, information he had

disclosed during his questioning by the police, namely information about his wife and the car he

normally used.

Mr Borg’s claims in constitutional redress proceedings namely, the lack of legal assistance at the pre-

trial stage in his respect and in respect of the witnesses who had also been under investigation and

who had given testimony against him, and the fact that the same magistrate who had conducted the

inquiry had also been in charge of compiling the evidence in the committal proceedings – were

rejected.

Complaints, procedure and composition of the Court

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of one’s own

choosing), Mr Borg complained in particular: that he did not have any legal assistance while in police

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

custody; and that the fact that the two witnesses who had given evidence against him had also

lacked legal assistance when giving their statements had affected the fairness of his trial.

Furthermore, he complained in particular that the Maltese Constitutional Court had changed its

interpretation of the European Court of Human Rights’ case-law concerning the right to legal

assistance in police custody, which he alleged ran counter to the principle of legal certainty and was

in breach of Article 6.

The application was lodged with the European Court of Human Rights on 28 May 2013. ,

Judgment was given by a Chamber of seven judges, composed as follows:

András Sajó (Hungary), President,

Boštjan M. Zupančič (Slovenia),

Nona Tsotsoria (Georgia),

Paulo Pinto de Albuquerque (Portugal),

Krzysztof Wojtyczek (Poland),

Egidijus Kūris (Lithuania) and,

Anna Felice (Malta), ad hoc Judge,

and also Françoise Elens-Passos, Section Registrar.

Decision of the Court

Article 6 § 3 in conjunction with Article 6 § 1 – lack of legal assistance

The Court noted that it had found violations of the Convention in previous cases on account of the

fact that an applicant did not have any legal assistance while in police custody because it was not

possible under the law in force at the time in the State concerned.²

Furthermore, Mr Borg had not waived the right to be assisted by a lawyer at that stage of the

proceedings – a right which was not available. The Maltese Government had not contested that

there had been a general ban in Maltese law at the time on accused persons seeking the assistance

of a lawyer at the pre-trial stage. It followed that Mr Borg had been denied the right to legal

assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons.

This already fell short of the requirement under Article 6 that the right to assistance of a lawyer at

the initial stages of police interrogation might only be subject to restrictions if there were compelling

reasons. There had accordingly been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.

Having regard to that finding, the Court did not consider it necessary to examine Mr Borg’s

complaint that the lack of legal assistance to the two witnesses who had given evidence against him

had also affected the fairness of his trial.

Article 6 § 1 – alleged lack of legal certainty

The Court noted that from 2012 the Maltese Constitutional Court had indeed changed its

interpretation of the European Court of Human Rights’ case-law concerning the right to legal

assistance in police custody. As a result, a number of persons who – as a consequence of the

systemic ban in Malta – had not been assisted by a lawyer when they made their statements had not

had the benefit of favourable judgments remedying their situation. However, the Court underlined

that, as it had found in previous cases, in the absence of arbitrariness, such a reversal of the case-law

fell within the discretionary powers of the national courts. Consequently, no issue arose as regards

the notion of legal certainty. Accordingly, there had been no violation of Article 6 § 1.

²Among other cases Salduz v. Turkey (36391/02), Grand Chamber judgment of 27 November 2008.

Just satisfaction (Article 41)

The Court held that Malta was to pay Mr Borg 2,500 euros (EUR) in respect of non-pecuniary

damage and EUR 2,185 in respect of costs and expenses.

Separate opinion

Judge Pinto de Albuquerque expressed a partly concurring and partly dissenting opinion, which is

annexed to the judgment.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.