Issue link: https://maltatoday.uberflip.com/i/943656
48 maltatoday SUNDAY 18 FEBRUARY 2018 T his was decided by the Civil Court First Hall in its Consitutional Jurisdiction in a judgement of the 14th February 2018 in the names of Brian Vella v. Avukat Ġenerali. On the 31st October 2004, Brian Vella was arrested under suspicion of his involvement in crimes relating to drug trafficking. On the same day he released a statement to the police where he had made a number of self- incriminating statements. Brian Vella declared that when he released the said statement, he was not advised that whatever he said could eventually be used as evidence against him before the Court of Magistrates and he did not have the right to have a law yer present during his interrogation since at the time this was precluded by law. During the criminal proceedings, the only evidence produced by the prosecution were the report of the Technical Expert, the evidence of the police officers who had arrested Brian Vella and the incriminating statement that the plaintiff had released. Eventually due to the fact that at the time, the plaintiff could not attack the validity of his statement, he admitted to the charges brought against him and he was sentenced to seven months imprisonment, €600 fine and was put on a Probation Order for three years. In view of the above, Brian Vella filed this constitutional case where he requested the Court to decide that the statement which he gave to the police on the 31st October 2004 and which was subsequently produced before the Court of Magistrates breached his fundamental human right of fair hearing as contemplated in Article 6 of the European Convention on Human Rights and Article 39 of the Constitution of Malta. He also requested the Court to declare that the judgement of the Court of Magistrates in its Criminal Judicature Jurisdiction was therefore null and void since his admission was only a result of his previous statement given to the police. The Attorney General in his reply submitted that the fact that at the time of his arrest, the law did not allow plaintiff to have a law yer present during his interrogation did not necessarily impinge on his human right of fair hearing. Moreover when it was submitted our Courts had not established any principle that failure to have legal assistance granted to the accused during a police interrogation (since this was not allowed by the law of the time) automatically resulted in a breach of the right of fair hearing. Honourable Judge Dr Mark Chetcuti who presided over the case, when making his considerations referred to the judgement of the European Court of Human Rights in the names of Borg v Malta (ECHR 37537/13) decided on the the 12th January 2016 where it had been held 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 law yer 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 justif y denial of access to a law yer, 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 law yer are used for a conviction (see Salduz, cited above, § 55). Denying the applicant access to a law yer 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)". Honourable Judge Dr Chetcuti held that at the time of the interrogation in question, Maltese law had a "systematic restriction of access to a law yer pursuant to the relevant legal provisions" (Boz vs Turkey, 09/02/2010 and Dayanan v Turkey, 13/10/2009) and therefore this should formally result in a breach of Article 6 of the ECHR since at the time the right for legal assistance was non-existent. With regards to Article 39 of the Constitution of Malta, the Court held that when examining this provision what is relevant is not the fact that the statement was taken by the police, but whether the said statement had any weight on the decision of the Court of Magistrates during the criminal proceedings. In this respect, the Court held that the Court of Magistrates had found the plaintiff guilty of the charges brought against him in view of his admission and as a result of his statement. The plaintiff had registered his admission in open Court and after having consulted with his law yer and the Court of Magistrates had not gone into the merits of the case given that the plaintiff had admitted to the charges and therefore the statement did not play a role in his sentencing. In view of the above, whilst deciding that the statement given to the Police by the plaintiff during his interrogation breached Article 6 of the ECHR, the said statement did not breach article 39 of the Constitution of Malta and therefore the judgement of the Court of Magistrates was not declared null and no compensation was granted to the plaintiff. Dr Catherine Mifsud Associate Mifsud & Mifsud Advocates Opinion A n application for the construction of an agricultural store with an underlying basement and reservoir was turned down by the Planning Commission after it held that the proposal was in breach of various planning policies. The site in question consists of a field which is located outside the development zone of Zebbug (Gozo). In its decision, the Commission held as follows: 1. The site was characterised by illegal development consisting inter alia of unauthorised deposition of soil, introduction of hard surfaces, removal of vegetation and 'possible alterations to site topography and rubble walls'; 2. The proposed store and reservoir ran counter to the provisions of the Rural Policy and Design Guidance 2014, which prohibits 'new development on land supporting natural habitats'; 3. The proposal was tantamount to 'the destruction of natural landscape features'. Aggrieved by the said decision, applicant decided to lodge an appeal before the Environment and Planning Review Tribunal, insisting that the Agriculture Advisor Committee (the AAC) had based its decision on 'wrong information which was made available from the agricultural department'. Furthermore, applicant alleged that the Environment and Resources Authority (the ERA) was wrong to assert that 'the site was illegally converted from maquis land to agricultural land'. Applicant, now appellant, went on to argue that the ERA's conclusions were equally based on recent aerial photography whereas 'previous aerial photography clearly indicates that the land was previously tilled'. To substantiate his arguments, applicant highlighted that the land bordering his property also consisted of agricultural land. The Planning Authority stood firm against applicant being granted a permit. In reply, the case officer representing the Authority underlined that applicant had failed to provide 'adequate proof of arable farming' as required by planning policy. The proposed agriculture store was thus not justified. Once again, express reference was made to ERA's conclusions pointing towards 'the presence of natural maquis habitat and the absence of agricultural fields'. The case officer maintained that the area in question had been identified for its Ecological Value and was, in fact, being proposed as a 'Level 3 valley system'. In his final remarks, the case officer reiterated that the appeal should be rejected so as to protect the existing natural landscape features. In its assessment, the Tribunal observed that the Authority had not brought sufficient evidence to show that the land was illegally reclaimed as it purported. In addition, the Tribunal agreed with applicant in that that the site was not scheduled as yet. More so, the location was adequately screened and applicant was a registered farmer. Against this background, the Authority was ordered to issue the permit. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Catherine Mifsud mmifsud@mifsudadvocates.com.mt Gozo farmer entitled to have a store The Authority failed to bring sufficient evidence to prove its allegations Maltese Law which precluded legal assistance during police interrogation deemed a breach of human right to fair hearing