MP urges minister to ensure ‘full compliance’ with human rights

Debono’s warning comes in the wake of harsh criticism of the Justice Minister by the Opposition, which holds Mifsud Bonnici ‘politically responsible’ for a situation whereby past convictions may be overturned on the grounds that suspects had not been allowed to consult their lawyers while in police custody.

Following legal amendments passed in 2002 (but which only came into effect eight years later, in February 2010) all arrested persons are now allowed access to a lawyer prior to police interrogation.

Mifsud Bonnici this week justified the delay in enacting the 2002 legislation, arguing that before the landmark ‘Salduz vs Turkey’ ruling of April 2008, there was no ‘widespread recognition’ of the right of access to legal assistance during arrest.

Nonetheless, this interpretation of the human right in question can be challenged even by this newspaper, which in November 2008 interviewed ECHR judge Giovanni Bonello who stated clearly that “access to a lawyer while in detention is generally considered the very minimum of detainees’ rights, so much so that it is taken for granted in the rest of Europe. Malta is probably the only European country where this right has not been properly translated into law.”

Now, Nationalist MP Franco Debono – who has been harping on the issue of legal assistance to persons under arrest since his election to parliament in March 2008 – argues that this same right has still not been properly transposed.

Contacted by MaltaToday, Debono pointed towards a number of more recent rulings by the EHCR, which suggest that even with the February 2010 amendments thoroughly in place, Maltese law still falls short of the human rights protection associated with a council of Europe State.

One of these ECHR rulings (Nadem versus Croatia, 21 June 2011) has already been cited by the Magistrate’s Court earlier this month, in a judgment delivered by Lawrence Quintano.

The original ECHR ruling notes that: “during the initial questioning by the police (the suspect) did not have the assistance of a lawyer. His confession, made without consulting a lawyer, had been used in the proceedings and had been a significant basis for his conviction… The Court therefore found that there had been a violation of Article 6.3 (of the human rights convention), in conjunction with Article 6.1.”

Debono argues that this ruling, together with Dayanal vs Turkey (13 October 2009) and Brusco versus France (14 October 2010), strongly suggests that the legal amendments enacted so far are insufficient to clear Malta of possible human rights infringements with which the country may stand accused in future.

“These rulings indicate that access to legal assistance has to take place during police interrogation, and not prior as things stand with Maltese law today,” he said yesterday. This, he added, may impact not only cases decided before February 2010, but also afterwards, with potentially serious implications for the criminal justice system.

Government warned in 2010

The Ghaxaq lawyer also revealed that he had expressed similar reservations in an email sent to the Prime Minister, copied to the Justice Minister, on 22 January 2010 – less than two weeks before the new law came into force on 10 February 2010.

“I pointed out that the new law, as it stood, needed to be substantially supplemented if it was to effectively guarantee human rights protection,” Debono said yesterday.

He explained in that email that one of the areas that needed to be addressed concerned the right of disclosure, which to date is still denied to lawyers locally.

“This is not a new right that we’ve just invented ourselves. It exists in practically every serious judicial system in the civilized world.”

The right of disclosure allows lawyers access to the basic facts of the case before consulting their clients, and to enable them to prepare the best possible defence.

“But in the Maltese system, if a lawyer asks the police about the facts of a client under arrest, the police can refuse. So how can the lawyer advise his client, if he doesn’t even know what he’s being charged with?”

In his January 2010 email, Debono also stressed that initiatives needed to be taken to strengthen the police force ahead of saddling it with new responsibilities.

The police, he argues, remain insufficiently prepared to cope with the new procedures.

“I have since asked a number of parliamentary questions regarding the stage of preparation for video recording of police statements, among others. I have been told that we are still at a very early stage.”