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maltatoday | SUNDAY • 23 JULY 2023 11 LAW CLASSIFIEDS LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates THE right to a fair hearing, as guaranteed by Article 39 of the Maltese Constitution and Article 6 of the European Convention on Human Rights, necessitates that a person undergoing criminal investigation be given the right to legal assistance at all stages of the criminal investigation, even in pre-trial stages. This right intends to coun- ter the vulnerability of suspects, safeguard against coercion and ill-treatment, ensure respect for the fundamental right against self-incrimination, and equip sus- pects with appropriate informa- tion regarding their rights. However, as confirmed in a judgment delivered by the Con- stitutional Court on 12 July 2023 in the case of Francis Xavier Galea vs the Attorney General (later the State Advocate), the right to legal assistance exists only when a per- son is deemed a suspect of a crim- inal offence. On 5 September 2008, the plain- tiff received a consignment from Dubai, which he falsely declared as being DVDs and Hi-Fi. On 11 Sep- tember, Galea contacted a customs official to inquire about the expor- tation of cigarettes to Libya. At the same time, he present- ed an airway bill consisting of DVDs and hi-fis, justifying such discrepancy by stating that the false description was intended to prevent the load from being sto- len upon re-exportation. A Cus- toms inspector, in the presence of Galea, opened the consignment and confirmed that the load was of cigarettes and not DVDs and hi-fis. In the following days, the inspector called upon Galea for questioning and to submit a decla- ration. Following this encounter, the Commissioner for VAT and the Controller of Customs asked the Police Commissioner to take criminal action against Galea for false declarations made with the intent to avoid customs duaties. The Court of Magistrates found Galea guilty, a decision which was confirmed by the Criminal Court of Appeal. The Plaintiff filed a constitution- al action, claiming that his right to a fair hearing was violated when he answered questions to the cus- toms inspector and made declara- tions without the assistance of an advocate. He argued that although no declaration taken during his questioning with the customs offi- cials was presented in the criminal case, reference was made to such declarations, which, he argued, conditioned his own testimony before the Court of Magistrates in the criminal case. The Constitutional Court did not uphold this claim. Firstly, the Constitutional Court considered that it was Galea himself who de- cided to give testimony on such declarations, which directed the court to inquire further on the statements made by him with the customs inspector. The Court fur- ther considered that the right to legal assistance whenever a person is suspected of an offence is a pro- cedural right, and thus statements and declarations made without legal assistance are generally con- sidered to be procedurally flawed. However, the lack of legal assis- tance does not automatically im- pinge on the right to a fair hearing, and due consideration must be made to the criminal proceedings as a whole and on a case-by-case basis. The Constitutional Court considered that notwithstanding the fact that the customs inspec- tor had asked him questions re- lating to the consignment, it was Galea himself who declared that the pellets consisted of cigarettes and not what was declared on the airway bill. The Court considered that Galea's declaration was not the result of a vulnerable position within which he found himself in, but rather it was his own con- scious and voluntary decision to approach the customs officials and reveal self-incriminating in- formation. When he revealed to the Cus- toms Officials what was truly in the consignment, he was not yet a suspect, and thus declarations made at that stage could not be considered declarations made at the pre-trial stage. The Court considered the plain- tiff's application as vexatious and ordered him to pay double the ju- dicial costs. Notwithstanding this clear and pronounced judgment, the distinction as to whether a person is deemed to be a suspect and thus granted with the protec- tions of the right to a fair hearing, may not always be clearly demar- cated. The Strasbourg Court has re- peatedly declared that access to le- gal representation should be pro- vided upon the first interrogation; however, the European Court of Human Rights has qualified what form of questioning is subject to the right of a fair hearing. In Ban- daletov vs Ukraine, a witness who was not considered to be a suspect at the time of questioning, con- fessed to the crime. The European Court of Human Rights consid- ered that as the police had only regarded the witness as a suspect upon his confession, the right to legal assistance incurred from the moment of confession and not prior. This did not render that confes- sion as inadmissible evidence giv- en that such confession was main- tained even during interrogation while being legally assisted. The Constitutional Court in the Francis Xavier Galea case, apart from clarifying what is considered to be a suspect deserving the right to legal assistance, further clari- fied that when examining a viola- tion of the right to a fair hearing for statements made without legal assistance, it is essential to study the trial as a whole, the relevance of such statements, and the overall impact that those statements have upon the eventual attribution of guilt. The court clearly pronounced that when a person renders him- self a suspect through disclosing self-incriminating evidence, no violation of the right to a fair hear- ing can subsist. Lack of legal assistance does not render a violation of the right to a fair hearing when statements are made voluntarily outside pre-trial stage DR JODIE DARMANIN Dr Darmanin works at Mifsud & Mifsud Advocates HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET SHOP TO LEASE - Class 4 B 60 sqm corner shop to lease in San Gwann. Key money €49,888 and €40 a day rental. Call on 79703404. XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. 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