Nigerian drug trafficker's 2010 sentence to stand despite rights breach

A Nigerian man who was jailed for 20 years and fined €70,000 in 2010 for importing three kilogrammes of cocaine had suffered a breach of his rights because he had no lawyer present during his interrogation, a court has declared, but afforded him no additional remedy, saying it had no bearing on the outcome as his guilt had been abundantly clear.

Nigerian businessman John Udagha Omeh, 42, had been arrested at the airport in 2007 and found to have been carrying three kilogrammes of cocaine in what was described at the time as one of Malta's largest drug hauls. The drug was assessed as having a purity of 60%.

Omeh had been stopped by Customs officers upon his arrival from Tripoli and his black and grey Samsonite bag was searched. The search yielded two packages concealed in the bottom of the bag and on the side. He had told police that the bag in which the drugs were found belonged to a friend of his who had asked him to pass it on to a man in Malta shortly before he left Togo in December 2007.

In 2010, a jury had found Omeh guilty, by seven votes to two, of conspiring to import, importing and possession of the drug. The sentence was later confirmed on appeal.

Omeh had filed Constitutional proceedings in which he claimed, amongst other things, that his rights had been breached by the fact that he had been assisted by a lawyer from the legal aid pool who was not specialised in criminal law and that he had not been assisted by any lawyer during his initial interrogation.

The Attorney General had argued that firstly, that the fact that he was assisted by a legal aid lawyer did not automatically mean that he was not duly legally assisted as had been implied by in the constitutional application. “In fact, nowhere in the constitutional application is the applicant alleging that he was poorly assisted,” the Attorney General had observed.

The right to legal assistance at the pre-trial stage was enacted into law in 2002. However, that law had only come into force in 2010 by means of a Legal Notice.

In its judgement on the matter, the First Court of the Civil Court in its Constitutional Jurisdiction presided by judge Anna Felice, said that Omeh was correct in stating that when he gave his statement to the police, the law did not provide for legal assistance during pre-trial investigations, specifically during questioning, whether this was done by the police or by a Magistrate in his or her investigative role.

“Before questioning, suspects such as the applicant at the time, would be cautioned, that is, informed of their right to remain silent and that anything that they said could be written down and produced as evidence against them. At the time, no inferences could be drawn by the court during the trial from the silence of the accused during questioning.”

Citing European case A.T. Vs Luxembourg, the European Court noted that “the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or otherwise remanded in custody, whether interrogations take place or not.”

“However, in view of the Borg v Malta judgement, the Constitutional Court has, most recently in the case of Aaron Cassar vs Avukat Ġenerali et (11 July 2016)... found that this restrictive interpretation is no longer tenable in light of Borg v Malta, wherein the European Court found that the mere lack of right to legal assistance during police interrogation amounted to a breach...of the Convention.”

The court rejected Omeh's first request and declared that his right to a fair trial in terms of the Constitution and the European Convention had not been breached as a result of the legal assistance provided by his appointed legal aid lawyers or the legal aid system in general.

It also rejected his second request and declared that the order issued by the Attorney General's unfettered discretion to decide whether the applicant be tried before the Court of Magistrate or the Criminal Court “was neither unconstitutional nor was it in breach of Article 39 of the Constitution and Articles 6 and 7 of the European Convention.”

“In the case before the Court today, the applicant was caught red handed with over three kilogrammes of cocaine with a purity of 61.2% and having a street value of €299,644. Whilst it is true that the applicant only found that that he was going to be tried by the Criminal Court when he was formally charged, the seriousness of his crime cannot have had escaped him. By no stretch of the imagination could the applicant be considered a ‘borderline case’ to the effect that he could have reasonably been under the impression that the crime merited that he be tried before the Court of Magistrates. Therefore, he could surely have foreseen that he would be tried before the Criminal Court.”

The court, however upheld his third request and declared that his right to a fair hearing had been breached by the fact that Maltese law did not permit him to be assisted by a lawyer when he gave a statement to the police. In fact, during the criminal proceedings against him, at no point did he raise any objection with respect to his statement

With regards to his request for a remedy to this breach, the court held that its “declaration to the effect that his rights have been breached to be a just and effective remedy in view of the fact that it does not appear that the applicant suffered any substantive prejudice as a result of the said breach.”

Omeh was also ordered to pay two thirds of the costs of the case.