Miscarriage of Justice by the European Court of Human Rights. CASE OF FARRUGIA v. MALTA - in Eng.

Описание: Miscarriage of Justice by the European Court of Human Rights. CASE OF FARRUGIA v. MALTA - Application no. 63041/13) By Edward Falzon on the 18 June, 2022. In English.

JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND PINTO DE ALBUQUERQUE

1. In the present case the applicant complained that, as a result of the Maltese legal framework, he did not have legal assistance during police custody and questioning and that the statements he made during this period were used in securing his conviction, contrary to Article 6 §§ 1 and 3 (c) of the European Convention on Human Rights (“the Convention”). Regrettably, we are unable to follow the conclusion of the judgment in finding no violation of this Article.

14. Again, we cannot accept this argument. The right to remain silent is not interchangeable with the right to a lawyer. These are two very different rights. Legal assistance at the pre-trial stage of a criminal procedure is essential to inform the defendant of the advantages and disadvantages, from the perspective of the defence strategy, of speaking out or remaining silent. In other words, the right to a lawyer is instrumental in effective protection of the right to remain silent (and of the privilege against self-incrimination).
24. The majority go so far as to concede that the guarantee of a lawyer, provided after the police interviews, and the adversarial nature of the ensuing procedure were also not capable of curing the defect that had occurred at the time of police custody. Unfortunately, the majority are not prepared to draw the consequences from these serious shortcomings which irretrievably undermine the soundness of the conviction and the overall fairness of the entire proceedings.
25. We cannot but conclude that the majority do not apply the “very strict scrutiny” that they had promised to the fairness assessment. Had this very strict test been applied, they would have reached the same conclusion as we did, namely that the proceedings were very unfair to the defendant.
IV. Conclusion
26. This is a truly Kafkaesque case, in which an already acquitted defendant ultimately finds himself convicted on the basis of shaky testimony from one single prosecution witness and the appellate judges’ doubts regarding the credibility of the defendant’s replies to police questions concerning facts unrelated to the imputed offence. We were already persuaded that, under the first approach, his conviction should not stand. It is clear from the above analysis that all the arguments used by the majority in applying the second approach are unfounded. After concluding this analysis, we are further strengthened in our firm conviction that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. Having found such a violation, we would obviously award the applicant a sum in respect of non-pecuniary damage
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