Man seeks redress from European Court over denial of legal aid

Lawyers Franco Debono, David Camilleri and Joseph Gatt signed an application at the European Court of Human Rights on behalf of Martin Dimech, who was denied the right to legal aid during interrogations by the Constitutional Court.

After being arrested in May 2009, Martin Dimech, is awaiting a trial by jury on suspicion of drug trafficking. At the time of his interrogation, Maltese law did not provide for legal assistance during pre-trial investigations, hence he did not have the assistance of a lawyer.

Subsequently the statements he released at interrogation stage were presented as evidence against him.

The right to legal assistance was introduced in 2010, however the Constitutional Court has since given three judgements holding that the fact that the accused in all three cases were not assisted at interrogation stage, their rights to a fair trial were violated and declared that the statements they had released were null and void.

The court also ordered that the statements be removed from the respective case documentation.

In January 2011, Martin Dimech presented a request in the First Hall of the Civil Court for his statements to be declared void and be removed from the evidence against him.

The Court declared that indeed his right to a fair trial was breached and ordered the Criminal Court to take note of such a breach but did not order the removal of the documentation.

Both the accused and the Attorney General appealed the decision and in April 2013 the Constitutional Court upheld the AG's claim, revoked the judgement of the Civil Court and stated that there was no breach of fundamental rights.

The Court argued that the aim of having legal assistance is to ensure that the interrogation is carried out according to law and since there is no allegation that this was not the case, the case could not be upheld.

This decision contradicted the other three judgements, which were previously quoted as being in line with the current jurisprudence which held that a breach of right for a fair hearing takes place the moment an interrogation starts without legal assistance.

As the statements taken at this stage form part of the basis of the case, these inevitably taint and prejudice the whole trial. The court should have confirmed the Frist Hall's judgement adding that the statements are removed form the acts of proceedings.

In his application at the Court in Strasburg, Martin Dimech stated that inconsistency of the judicial authority which had the duty of protecting human rights constitute a violation in itself.

The Constitutional Court had already taken a stand and held that the lack of legal assistance was a violation of the right of fair hearing, so any divergence from this decision was simply based on subjective grounds.

Lawyers David Camilleri, Franco Debono and Joseph Gatt signed the application and claimed that since the proceedings against Martin Dimech are still underway no retrial is needed but the European Court of Human Rights should revoke the decision of the Constitutional Court, declare the statements null and order their removal from the acts.