Case of European Court of Human Rights, January 14, 2020 (case STEPHENS v. MALTA (No. 3))

Defense:MALTA (No. 3)
Resolution Date:January 14, 2020

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)




(Application no. 35989/14)


Art 6 § 1 (criminal) • Fair hearing • Testimony given by accomplice in absence of lawyer and admitted as evidence against the applicant • Overall fairness not impaired


14 January 2020

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Stephens v. Malta (no. 3),

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Paul Lemmens, President,Georgios A. Serghides,Dmitry Dedov,Alena Poláčková,María Elósegui,Gilberto Felici,Lorraine Schembri Orland, judges,and Stephen Phillips, Section Registrar,

Having deliberated in private on 3 December 2019,

Delivers the following judgment, which was adopted on that date:


  1. The case originated in an application (no. 35989/14) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Mark Charles Kenneth Stephens (“the applicant”), on 28 April 2014.

  2. The applicant was represented by Mr D. Camilleri, a lawyer practising in Valletta. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

  3. The applicant alleged that the use at his trial of third party statements given to the police without legal assistance had rendered his own trial unfair. He relied on Article 6 §§ 1 and 3 (c) of the Convention.

  4. On 9 June 2016 the Government were given notice of the above mentioned complaint and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

  5. The British Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

  6. On 19 January 2017 the President of the Section to which the case was allocated, at the time, decided to accept the applicant’s submissions submitted out of time (Rule 38 § 1).


  7. The applicant was born in 1963 and is detained in Paola.

  8. The police initiated their investigations in respect of the applicant on the basis of a statement made by a certain G.R.E, who had been, together with his partner S.M., stopped and searched at the Malta International Airport on their arrival on 11 August 2003. In one of their bags, the police found almost three kilograms of cocaine and 7,151 ecstasy pills.

  9. On 11 or 12 August 2003 G.R.E. was questioned by the police without the assistance of a lawyer. In his statement, G.R.E. stated that he was afraid to name the person who had instructed him to carry the drugs to Malta. However, he indicated that such person was of Russian nationality.

  10. On 12 August 2003 G.R.E. gave a second statement to the police, without the assistance of a lawyer, where he indicated that the drugs were delivered to him by a person who he knew as “Mark Stephens”. He also stated that “Mark Stephens” was Maltese and had a mother and two brothers who lived in Malta; one of his brothers ran a private school. G.R.E. also said that, prior to August 2003, on the instructions of “Mark Stephens”, he came to Malta to collect a substantial amount of money which he had to deliver to “Mark Stephens” in Spain. G.R.E. said that on that occasion he had met V.S., who told him that he had known “Mark Stephens” for a very long time and that, together, they were entering into a partnership to purchase a club in Spain.

  11. On 13 August 2003 G.R.E. confirmed his second statement on oath before the inquiring magistrate (during the inquiry relating to the in genere as known in Maltese law). The applicant claimed that G.R.E. had not been assisted by a lawyer on that occasion, while the Government gave contradictory versions on this point.

  12. On 30 November 2004, consequent to an arrest warrant issued by the Maltese authorities, the applicant was arrested and detained in Spain on suspicion of having conspired in the trafficking of cocaine, ecstasy and cannabis. On 9 September 2005 the applicant was extradited to Malta to stand trial on charges of drug trafficking.

  13. On 10 September 2005 the applicant gave a statement to the police. No lawyer was present during the interrogation. A further statement was given on the following day. The applicant stated that he had a sister and a brother who ran a private school and that they, as well as his mother, lived in Malta. He confirmed that he knew G.R.E., who used to drink in his bar which he was leasing in Zaragoza, Spain, called “Mountain Side Inn”. He also declared that it was A.W. who supplied G.R.E. with the drugs.

  14. On the same day the applicant was charged before the Court of Magistrates as a Court of Criminal Inquiry with having conspired in dealing in prohibited substances in breach of the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance, Chapters 101 and 31 of the Laws of Malta respectively.

  15. During the committal proceedings before the Court of Magistrates, on 20 September 2005, G.R.E. testified that the “Mark Stephens” he knew, and who had given him instructions, owned a restaurant in Spain called “Mountain Side” but was not present in the courtroom. G.R.E. claimed that what he had told the police had been fabricated because the inspector told him that he was facing thirty years imprisonment if he did not cooperate.

  16. On 23 September 2005, V.S. also gave evidence during the committal proceedings and confirmed that he had once been asked by his friend Mark Stephens – whom he identified as the person charged [the applicant] – to pick up G.R.E. from the airport and to take care of him. He also confirmed that he and the applicant were going to take a business together in Spain with another English person, and that he actually handed a sum of money to G.R.E. to pass on to the applicant.

  17. On 17 April 2006, a bill of indictment was issued and the applicant was put on trial by jury before the Criminal Court.

  18. During the trial G.R.E. changed his version. He denied that the applicant was “Mark Stephens” and said that a certain A.W. used the name of “Mark Stephens”. In this connection, in his summing up to the jury, the judge stated, inter alia, as follows: “The prosecution is asking you to consider that [the pre-trial] statement confirmed on oath as true. It is also asking you to find the accused’s guilt on the basis of that statement confirmed on oath before Magistrate X. Legally he is perfectly entitled to do so, whether you do so or not that is a question of fact which is up to you to decide, but when the prosecution tells you irrespective of what he said here, irrespective of what he said before the magistrate in the compilation of evidence, if you decide to believe his first statement confirmed on oath before Magistrate X and you accept that as the truth then on the basis of that statement you can convict the accused. Legally he is correct, factually it depends on you whether you are prepared to accept that first statement on oath.”

  19. In his statement of defence the applicant raised the issue of the admissibility of the statements made by G.R.E. before the trial. The defence also maintained that G.R.E. was a liar and that his credibility was at issue.

  20. On 28 June 2007 the Criminal Court observed that it was not in a position to address those pleas in a specific and concrete way, but that it could only limit itself to stating that it would be guided, in deciding whether or not to admit any such evidence, by the relevant provisions of law and principles accepted by the Maltese courts, such as ensuring that an accused was given a fair hearing and that due process, as interpreted by the Constitutional Court and the European Court of Human Rights, was observed.

  21. From the records of 3 November 2008 it appears that the applicant did not object to the distribution to the jurors of his own statement, nor did he object to the distribution to the jurors of the statement which G.R.E. gave on oath before the inquiring magistrate (see paragraph 11 above). G.R.E. also gave evidence on oath (see paragraph 18 above) and the applicant cross‑examined him. V.S. and the inspector also gave evidence on oath and a confrontation between G.R.E. and both witnesses ensued. The applicant cross‑examined V.S. who had stated that the applicant had introduced him to G.R.E. A number of other witnesses were also heard.

  22. By a judgment of 5 November 2008 the Criminal Court found the applicant guilty of having conspired for the purpose of committing an offence in breach of the provisions of the Ordinances cited above, and specifically of dealing illegally in cocaine and ecstasy pills and of having promoted, constituted, organised and financed such conspiracy. It sentenced the applicant to twenty‑five years’ imprisonment and to a fine of 60,000 euros (EUR) and ordered him to pay costs.

  23. On 21 November 2008 the applicant appealed against that judgment before the Court of Criminal Appeal, requesting the latter to revoke the first‑instance judgment. In so far as relevant, his grievances may be briefly summed up as follows: there was a wrong interpretation and application of the law regarding the difference between impeaching the witness and believing him in whole or in part, or not at all; the first court’s direction to the jury “that the statement [of G.R.E.] could...

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