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Maltese lawyers ask European Court of Human rights for ruling on legal assistance
Labour, Nationalist activists in joint application to European Court of Human Rights to enforce consistent application of right to fair trial.
5 November 2012, 12:00am
Karl Stagno-Navarra
Karl Stagno-Navarra
3 min read
40 criminal lawyers call on the European Court of Human Rights in Strasbourg to rule on the illegality of statements released by suspects who are not accompanied by their lawyers during police investigations.
Malta's criminal justice system is set to face more upheaval with an application signed by 40 criminal lawyers, calling on the European Court of Human Rights in Strasbourg to rule on the illegality of statements released by suspects who are not accompanied by their lawyers during police investigations.
The petition - promoted by Labour's shadow minister for justice Josè Herrera (pictured inset) - is the latest twist in the long-drawn-out saga of the government's unwillingness to put into effect one of Europe's most basic of rights, that of fair trial, by allowing suspects under police interrogation to request the presence of their lawyer.
Although voted into law by the House of Representatives in 2002 and enacted by legal notice in 2010, the lawyers are telling the European Court that the law is not being applied consistently by Malta's highest court.
Lawyers who signed the application include Nationalist MP Franco Debono, who earlier this year voted in favour of an Opposition's no confidence motion that forced the resignation of home affairs minister Carm Mifsud Bonnici, in part over the minister's intransigence to apply the right to legal assistance uniformly during police interrogations.
Debono's signature features alongside those of Labour MPs Chris Cardona and Owen Bonnici, Labour deputy leader for party affairs Toni Abela, and former PN candidates Martin Fenech and Melvyn Mifsud. The petition includes renowned lawyer Giannella de Marco, daughter of the late President of the Republic Guido de Marco, criminal defence lawyer Joseph Giglio, and former prosecuting lawyer Stephen Tonna Lowell.
In their application, the Maltese lawyers are appealing for a ruling from the European Court to decide over the validity of a suspect's statement taken without a lawyer present during police interrogations.
The lawyers state that the Maltese Constitutional Court had already established, in three separate judgements in 2011 (Pullicino, Lombardi, Privitera cases) that statements released by a suspect under interrogation without legal assistance, were clearly inadmissible as court evidence brought by police when prosecuting.
While the Constitutional Court had ruled that such statements were in breach of an accused's right to a fair hearing, this "clear position" was completely reversed last month, when the same court reversed its position in an appeal filed by the Attorney General to the Constitutional Court decision on a similar application by Charles 'Pips' Muscat.
On appeal, the Constitutional Court went back to the legal position as it was before the three judgements, stating that the police suspect's statement was "just part of the evidence brought against the accused and it is the competence of the [criminal] court that will [be] decided on the guilt or otherwise of the accused, to evaluate the probative value of the statement released by the accused even if it is so released without legal counsel."
The lawyers also tell the European Court that the Constitutional Court's recent judgement on Muscat goes against the landmark position established by the Strasbourg court in the cases of Salduz (2002) and Amutang (2009) against Turkey "and, more worryingly, the three local judgements afore-mentioned."
"Having our Constitutional Court change its position in such a short time-frame is worrying indeed because it leads to legal uncertainty."
In comments to MaltaToday, Josè Herrera stressed that Labour's position on the right to a legal counsel during interrogations was long established through a private members' motion tabled in parliament together with fellow MP and shadow minister for home affairs Michael Falzon.
"Our position is not to set criminals free, but to ensure that criminals are not set free because of the irregularity of a system," Herrera said, adding that if the country indeed was to mirror European principles, "then it is up to legislators to ensure that the Police don't allow such anomalies to lead to the release of criminals because they didn't do their job well enough."
Raymond Falzon •
What baffles is the fact that the same court ruled 3 times that a statement is inadmissable if taken without the presence of a lawyer. And yet the AG appealed a sentence which he obviously knew a clear judgement had already been given and lo and behold the same court changes it's own decision. In my mind this can only meen one thing the Court is in collusion with the police and the AG. They have made themseleves look like fools and maybe more. Can any one be blamed for having no confidence in the justive system ?
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The reason and common sense states that it should be that the police neither use brutal force nor be hindered by external help to the victim.
So in my opinion, the lawyer assisting the criminal at an early stage is an unfair disadvantage to the society because I am sure that the police will not prosecute anyone that is not clearly and evidently a criminal.
Any other frame up is to be condemned.
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First of all, I think the proper phrase is "lawyers who practise in the criminal court" as "criminal lawyers" does have its connotations. Secondly, I fail to see the utility of this petition other than as a publicity stunt as the European Court of Human Rights has no competence in the matter unless an individual files a petition after having exhausted all domestic remedies.
It is true that the current arrangements of allowing a phone-call or a consultation between the arrested person and his lawyer for up to an hour are hardly satisfactory but the solution is for parliament to enact a different law. So much saliva was spilt in getting the current law in vigore when it does not change much the situation of the person arrested. Our police rely too extensively on the statement they obtain from the arrested person and that is why in many instances, an accused has to plea guilty because he would already have compromised his position on giving a statement. Once an accused cannot be forced to testify in criminal procedures, the pressure to obtain a statement during investigations is prejudicial to his legal position and he should be accompanied at all times by a lawyer during police interrogation. Moreover, police should not be allowed to make leading questions when taking a statement as they cannot do so in a court of law.
Thus, a true equality of arms would be ensured between the prosecution and the accused.
J. Ellis.
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The failing of the Maltese government on this issue is nothing short of scandalous.
First, the right passes as a law by unanimous vote in parliament, but it sits in the PM's drawer for 9 years because the police apparently didn't like it. Then, it is put into effect under pressure by a backbencher (prosit to him), but watered down in such a way as to make it a bad joke.
As it stands, a suspect can consult with a lawyer prior to questioning, but can not have a lawyer present during questioning - a clear violation of the ECHR. Worse still, if the suspect consults a lawyer and then exercises their right to remain silent, that fact can be introduced against them - another clear violation (on two counts) of the ECHR.
Well done to Jose and Franco for pushing this forward. Malta is in for a rough time with many convictions that have been poorly obtained but which will be overturned in time on this point. Yes, unfortunately some criminals will get off due to government's arrogance, but it is a small price to pay for better liberty and protection of everyone's rights.
