The right to a fair hearing was not violated by the fact that a man accused of trafficking heroin had made a statement admitting his guilt to the police when he was not assisted by a lawyer, according to a judgement in a constitutional application.

The judgement was delivered by Mr Justice Tonio Mallia in the constitutional application filed by Simon Xuereb against the Attorney General.

Mr Xuereb had been arraigned before the courts in April 2001 on charges of trafficking heroin. He had been jailed for nine years and fined Lm10,000 after he admitted his guilt when faced with a trial by jury.

His sentence was confirmed by the Court of Criminal Appeal which had, however, slightly reduced the fine.

But Mr Xuereb claimed that when he had made his statement to the police he had not been entitled to be assisted by a lawyer. He claimed that he had unjustly incriminated himself and that this was in violation of his right to a fair hearing.

In his judgment Mr Justice Mallia confirmed that the Constitutional Court had, last April, approved the principle that the taking of a statement by the police when the person under investigation was not able to consult with a lawyer was in violation of that person's fundamental human right to a fair hearing.

But the court pointed out that the Constitutional Court had added that this ruling was not to have retroactive effect and could not affect decisions which were final. This was in accordance with case law of the European Court.

Mr Justice Mallia said that Mr Xuereb had admitted his guilt before the court and had appealed to the Court of Criminal Appeal with regard to the sentencing and not with regard to his admission.

He had not contested the validity of his statement before the Magistrates Court nor before the Criminal Court.

The court added that the Criminal Court had not based its judgment against Mr Xuereb solely on the basis of his statement but had taken other evidence into consideration and had ruled that there was proof of Mr Xuereb's involvement in the crime.

Mr Xuereb's application was, therefore, dismissed.