A lawyer whose criminal trial over drug-smuggling charges is expected soon, has successfully argued before the Constitutional court that a police statement released 18 years ago upon arrest and without legal assistance, cannot  be used as evidence against her.

Graziella Attard was a 23-year old law student when one night in November 2004 she was arrested together with her Italian boyfriend, Roberto Conte, a Neapolitan trader, as soon as the couple arrived from Pozzallo, Sicily.

Acting on a tip-off, police officers had searched the couple’s  Peugeot and discovered several packets of suspected cannabis resin, totalling some 10 kilograms, tucked away under one of the seats. A further search inside the couple’s Fgura residence later that same night had yielded more drugs.

The couple were arrested and charged with importation and possession of the drug, as well as with having conspired with third parties to import and traffic drugs.

The Italian man has eventually pleaded guilty and in January 2008 was condemned to a 12-year jail term and a €28,000 fine. On the other hand, his Maltese girlfriend had pleaded not guilty and after undergoing a compilation of evidence is currently awaiting her final trial.

In the meantime, in September 2016, the now-lawyer, filed a constitutional application against the Attorney General claiming a breach of her right to a fair hearing in view of the fact that, when releasing her statement two days after her arrest, she had never consulted a lawyer.

Although at the time, namely in 2004, Maltese law did not envisage this right to legal assistance in the earliest pre-trial stages, the right was acknowledged and enforced by the European Court of Human Rights ever since 2008 in Salduz vs Turkey and consistently thereafter.

Save for exceptional circumstances “as a rule access to a lawyer should be provided as from the first interrogation of a suspect by the police,” the European Court had pronounced in a long line of case-law, its position subsequently reaffirmed in Malta.

The First Hall, Civil Court, in its constitutional jurisdiction, presided over by Madam Justice Lorraine Schembri Orland, observed that two days after her arrest in the evening of November 4, 2004, the applicant had released her statement to the police after being duly cautioned.

The then young law student had at first denied all allegations, later admitting that she had known of her boyfriend’s plan to acquire and import 38 blocks of cannabis resin from Italy for the purpose of handing them over to a third party in return for a share in the deal.

Her boyfriend had admitted to the wrongdoing and had benefited from a reduction in punishment by testifying in her regard.

In a 77-page judgment citing extensive case-law, Madam Justice Schembri Orland while rejecting the applicant’s request for a fresh hearing of the case, concluded that the latter’s right to a fair hearing could potentially be breached if her police statement were to be produced in evidence against her in the trial.

Since the applicant had not consulted a trusted lawyer in the early stages of her arrest, a right repeatedly reaffirmed by the European Court of Human Rights and subsequently even by local courts, that statement containing her admission was to be removed from the records of the case, the Court declared.

Lawyers Franco Debono and Amadeus Cachia assisted the applicant.