Although a man suspected of staging his own hold-up in Msida 17 years ago was not given access to a lawyer during interrogation, his case was dealt with fairly, the European Court of Human Rights has ruled.
In February 2002, Antsat director Carmel Farrugia, 55, of Marsascala, and an employee, Anthony Farrugia, 44, of Luqa, had been charged with fabrication of false evidence, simulation of offence, fraud relating to insurance and making a false statement under oath.
The incident occurred the month before.
The employee had been conditionally discharged for three years in June 2003 after being found guilty of filing a false police report. The judgment was confirmed by the Court of Criminal Appeal the following April.
The director was acquitted of all charges in January 2007 due to reasonable doubts. The Attorney General appealed that judgment.
The Court of Appeal found there had not been any evidence concerning the charges of fraud relating to insurance, making a false oath and fabrication of false evidence. However, Mr Farrugia was found guilty of simulation of an offence and was sentenced to a year in prison, suspended for four years.
Mr Farrugia eventually filed a constitutional application claiming violation of the European Human Rights Convention on grounds that the Court of Appeal’s judgment was based on statements he had given to the police without the assistance of a lawyer.
However, his complaint was rejected.
Among other things, the Constitutional Court noted that the Court of Appeal had not relied only on Mr Farrugia’s statement to the police but also on other means of corroboration. Thus, it felt that the statement was not a determining factor when finding guilt.
Mr Farrugia then decided to take his case to the European Court of Human Rights in Strasbourg, which noted that what Mr Farrugia had told the police did not amount to confessions, nor were his statements self-incriminating.
The court, which included Chief Justice Emeritus Vincent De Gaetano, pointed out that the privilege against self-incrimination was not confined to actual confessions or incriminating remarks.
Statements would be regarded as self-incriminating if they substantially affected a suspect’s position, the European judges said, noting that the Court of Appeal’s reference to Mr Farrugia’s statements in assessing his credibility could not be considered as having substantially affected his position.
Underscoring the need to apply very strict scrutiny when there were no compelling reasons to justify the restriction on the right of access to a lawyer, the Strasbourg-based Court found that, in this case, “the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer”.
It, therefore, concluded that Mr Farrugia’s right to a lawyer during police questioning was not violated.
The court, however, was not unanimous in its decision and two of the seven judges hearing the case entered a dissenting opinion.
The Cypriot and Portuguese judges deemed the case “truly Kafkaesque”. A man who had been acquitted found “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”.