Christopher Bartolo's inadmissible statements cannot be used against his co-accused either, judge rules

Statements released by Christopher Bartolo, previously declared inadmissible by the Constitutional Court and expunged as evidence against him, have now also been declared inadmissible in proceedings against his co-accused.

This emerges from a decree delivered by the Criminal Court presided by Madam Justice Consuelo Scerri Herrera on Tuesday, ordering the prosecution of Jonathan Roger Portelli to continue without Bartolo’s statements.

Portelli stands indicted for drug trafficking, having allegedly sold cannabis resin to a certain Joseph Grech at Marsalforn, Gozo, in 2013.

Grech had been arrested by the police after he was found in possession of some 321 grams of cannabis resin. He had released a statement to the police, which he later confirmed on oath, stating that he had bought the drugs from Portelli, who goes by the nickname Lingi.

Further investigations by the police led to a search of Christopher Bartolo’s residence and the discovery of 6 blocks of cannabis resin in May 2013. Bartolo had been arrested and had also released a sworn statement claiming to have purchased the cannabis resin in question from Portelli, adding that he would buy cannabis from him every month.

Portelli’s Munxar home had been raided by the police the following October, resulting in the discovery of paraphernalia used in the preparation of cannabis joints and around 7 grams of cannabis resin.

The Attorney General had subsequently indicted Portelli for offences which included drug trafficking, asking the court to impose a life sentence.

Portelli’s defence lawyers, Arthur Azzopardi and Jacob Magri, had requested the expunging of Bartolo’s statements, which mention Portelli, on the ground that they had already been declared to have been the result of a breach of Bartolo’s human rights.

The Attorney General, on the other hand, citing a number of judgments by Maltese courts and the European Court of Human Rights, insisted that those decisions had only been given with respect to Bartolo and not Portelli.

The judge made the observation that jurisprudence on statements issued by a suspect without the assistance of a lawyer was “vast,” reproducing extracts from several such judgments, however also noted that many of them were conflicting, “regretfully emphasising that it cannot be said that to date there is legal certainty about this issue.

Stating that she disagreed with the Attorney General’s opposition to Portelli’s request, the judge highlighted the wording used by the Constitutional Court in deciding the case filed by Christopher Bartolo, in which it ruled that “no use whatsoever is to be made” of Bartolo’s sworn statements before the magisterial inquiry. This meant that neither were they to be used in the proceedings against Portelli, said the judge, opining that it would also be wiser to refrain from using the statements so as to avoid claims of fundamental rights breaches further down the line.