Court disregarded ‘illegal’ evidence against convicted sex abusers

While not declaring this evidence ‘inadmissible’, Magistrate Saviour Demicoli observed in last week’s ruling that the police statements presented in court – signed by the accused in the absence of legal advice or assistance – were the result of flawed interrogation procedures which violated the principle enshrined in the ‘Salduz versus Turkey’ ruling by the European Court of Human Rights (April 2010).

Demicoli heavily emphasised one aspect of the Salduz ruling: “The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction”.

The local Constitutional Court has already upheld this principle in three separate verdicts, all delivered within a day of each other in April this year: namely, The Police vs. Alvin Privitera; The Police vs. Mark Lombardi, and the Police vs. Esron Portelli.

Quoting from the Lombardi ruling, Demicoli observed that “this right of the accused is irremediably prejudiced when statements released under interrogation, when the accused was not assisted by a lawyer, are used against him.”

Consequently, the Magistrate decided that statements made by both Pulis and Scerri would not be taken into consideration when deliberating his verdict. He went on to convict the two defendants regardless, but only on the strength of other evidence brought forward by the prosecution – mainly, the testimony of witnesses and the victims themselves.

Lawyers have since expressed concern at what has been described as a “systematic breach of human rights” – involving nearly all criminal cases in which the accused were interrogated before 2010 – which can be seen to affect the operations of the law courts.

Dr Franco Debono, a criminal lawyer and government MP, had in fact campaigned for a reform of police interrogation procedures soon after election to Parliament in 2008. At the time, a legal reform undertaken in 2004 had yet to come into force, and the police actively lobbied against the publication of the legal notices that would introduce the right to legal assistance while under arrest.

Police Commissioner John Rizzo publicly stated (on PBS’s Xarabank) that he was against such reforms, arguing that allowing suspects access to a lawyer during interrogation would “make it difficult for the police to solve crimes.”

But after the Salduz ruling in 2010 – as well as other EHCR rulings the following year – the Justice Ministry eventually published the relevant legal notices to put the 2004 reform into effect.

Talking to MaltaToday, Debono points towards the sex abuse verdict as further confirmation that there has been systematic breach of human rights affecting “nearly all cases brought forward before 2010.”

“This further illustrates that the police interrogation regime has been operating in violation of human rights,” he said yesterday. “Now that the 2004 reforms have been enacted we must see to it that Malta is fully compliant with human rights.”

After Salduz, there have been other cases suggesting that access to a lawyer must be granted during the interrogation process – and not before or after, as was the case with the 2004 reforms.

“It’s not enough that we finally enacted those reforms. The law still needs to be upgraded if it is to be fully compliant with human rights, and allow suspects access to legal advice during interrogation.”