Updated | Constitutional cases on legal assistance not stalling criminal prosecution

Updated at 8:52pm with government statement.

Shadow minister for justice Josè Herrera said Malta’s laws on legal assistance for criminals suspects are not in conformity with the European Convention of Human Rights and that a wave of constitutional cases could start hindering criminal justice.

“Labour is concerned of the crisis in the administration of criminal justice after both the European Court of Human Rights and the Constitutional Court affirmed the inalienable and fundamental right to legal assistance during police interrogations,” Herrera, a criminal lawyer, said.

“It’s a matter now being raised in various criminal proceedings and it will reach alarming levels very soon, to the point that it will stall these proceedings,” Herrera said.

But the ministry for justice and home affairs said it is mistaken to assume that this state of affairs is cause for alarm.

The ministry said that in three separate Constitutional cases concerning legal assistance during interrogation, the Constitutional Court had asked the criminal courts to decide on the validity or legality of the accused’s statements to police.

“This means that there is no form of ‘automatic’ liberation of the accused from criminal prosecution as is being implied by the Labour party, but it becomes onerous upon the court to consider the weight of a police statement made without any form of legal assistance,” the ministry said.

“It means the criminal court must decide whether such statements can serve as proof of admission or of a fact, like any form of evidence.”

The ministry for justice and home affairs has said that 709 of 2,994 arrestees last year made use of legal assistance during their interrogation. The ministry it is also preparing a tender for the supply of filming equipment to record police interrogations for suspects accused of serious crime.

Salduz case

Herrera said Maltese lawmakers have been procrastinating on the necessary legal amendments since 2002, and that Justice and Home Affairs Minister Carm Mifsud Bonnici must assume political responsibility.

In 2008, the European Court of Human Rights issued a groundbreaking decision in case of Salduz v. Turkey. The court held that people detained at police stations have the right to access a lawyer. If people are interrogated by the police without getting the benefit of legal assistance, this could be a violation of their fundamental right to a fair trial.

The Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has also been vocal on this issue, stressing that access to a lawyer in the period immediately following arrest is a “fundamental safeguard against ill-treatment.”

Malta had introduced this right in 2002 but it was not implemented until a legal notice was published last year. Herrera says that this legal notice is not “even in conformity with an EU directive of July 2010.

The ministry however said this directive – the right to information during criminal procedures – is still being discussed between the Council of EU ministers and the European Parliament. “It is permature to talk of non-conformity with this law when it is still far from being approved at all stages.”

The Open Society Justice Initiative based in Hungary has said there the law granting suspects the right to seek legal advice provides for the possibility of delaying access to a lawyer for up to 36 hours while the suspect can be interrogated. The group says there are limitations as to when this delay can be ordered and by whom, but the limitations are drafted in very broad terms leaving room for abuse.