The concept of overall fairness is applicable in Malta to see whether there was a breach of the right to a fair hearing. This was held by the Constitutional Court in Mario Buhagiar vs State Advocate, decided on 5 January 2026. The Constitutional Court was presided over by Chief Justice Mark Chetcuti and judges Giannino Caruana Demajo and Anthony Ellul.
The case revolves around a statement that Buhagiar had given to the police without the assistance of a lawyer. He was arrested and charged with drug trafficking offences aggravated by being close to a place frequented by young people – a school.
Buhagiar contested the distance from the school indicated in the charge and argued that he was discriminated against because the charges denied him the opportunity to be prosecuted on the basis of the Drug Dependence (Treatment not Imprisonment) Act. The First Court did not uphold Buhagiar’s claims.
In March 2008, the police had searched Buhagiar’s car and found some drugs. Later that day the police carried out a search in his residence and found cash and drugs. In 2013, Buhagiar was sentenced to a four-year prison sentence and fined €6,000. He appealed and the case is still pending. However, in 2020, Buhagiar filed a constitutional case claiming that he did not receive a fair trial under Article 39 of the Constitution and Article 6 of the European Convention.
The State Advocate replied by saying that the criminal proceedings have not been concluded and therefore, the constitutional case should have been instituted after the criminal appeal was decided.
On 25 March 2025, the court of first instance rejected the State Advocate’s plea and also Buhagiar’s claims. He appealed this judgement. The Criminal Appeals Court had to examine the acts of the case to see whether the Magistrates Court could arrive at the conclusion it arrived. Buhagiar argued that the Magistrates Court did not carry out a judicial analysis of the facts of the case, including his statement to the police made without assistance of a lawyer.
The court of first instance referred to a judgement by the Criminal Appeals Court on 27 January 2021 in Malta vs Martino Aiello, which held that the court could take into account a police statement if it was taken in accordance with the law. The court then had to judge whether the statement was given in accordance with the law.
The court pointed out that the statement was confirmed under oath before a magistrate.
The records of the case showed that Mario Buhagiar was given a caution, in that he had no obligation to reply to the questions, but he admitted to using cannabis and at times selling it to his friends. When the statement was made, there was no right to be assisted by a lawyer.
The applicant, Mario Buhagiar testified during the proceedings but the magistrate clearly did not believe his version of events. The fact that he gave a statement to the police without a lawyer present was not in itself a breach of his human rights. The Appeals Court argued that one had to determine whether there was overall fairness in the criminal proceedings. Therefore, one has to examine what took place before the criminal proceedings and what took place during the criminal proceedings. This principle is derived from the European Court of Human Rights such as Beuze vs Belgium of 9 November 2018.
The Maltese Constitutional Court held that the case is still sub judice and moved to reject Buhagiar’s appeal.
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