Legal aid system ends up in court

Malta's legal aid system, which provides legal assistance to those who cannot afford hiring the services of a private lawyer, is currently the focus of a judicial protest in the Constitutional Court for allegedly violating both local and international law.

Lawyer Franco Debono and Michaela Spiteri filed the protest on behalf of their client John Udagha Omeh, currently serving a 20-year sentence for conspiracy to sell illegal drugs. Apart from contesting the lack of legal assistance provided to Omeh during his time of arrest, his lawyers also contend that the system which provides such assistance is itself in breach of the Human Rights Convention.

"The right of an accused to be assisted by a lawyer of his choice and to be provided free legal assistance by the State when he has not sufficient means is protected both under the Constitution (article 39(6)(c) and the European Convention of Human Rights  (article 6(3)(c) of Chapter 319)," Debono and Spiteri note.

"The current situation in the Maltese Legal system is that the person accused who does not have sufficient means is being assigned a legal aid lawyer from a restricted choice of about ten (10) lawyers, which lawyers are assigned on a roster basis and have to give their assistance and services both in civil suits and criminal cases without any consideration to various specializations such as civil law, commercial law, criminal law and others and moreover in the case of trials by jury the choice is more restricted as there is only one legal aid lawyer available."

Pointing out that "the spirit of the constitutional right should be in the sense that the legal aid lawyer is to be sufficiently remunerated by the State to guarantee a proper defence," Debono and Spiteri argue that the system in its present form "does not satisfy the criteria emanating from the Constitution (Article 39(6)(c))  and the European Convention on Human Rights (article 6(3)(c) of Chapter  319) (Pakelli vs Germany - 25^th April 1993, Lagerblom vs Sweden - 14^th April, 2003)".

The same judicial protest also highlights the extraordinary discretion afforded to the Attorney General to decide whether a case is heard before the lower or upper courts, with drastic differences in the maximum penalties stipulated at law.

"The discretion afforded to the Attorney General to decide whether the accused should be tried by the Courts of Magistrates as a Courts of Criminal Judicature or to issue the bill of indictment in order for the accused to be tried by a trial by jury violates article 39 of the Constitution and Article  7 of the European Convention on Human Rights."

In an interview in MaltaToday, Franco Debono outlines the main flaws in the system in more detail. Legal aid lawyers are not paid commensurately to their responsibilities, he argues, taking home a mere 200 euros a month. "With that sort of remuneration I must congratulate Malta's legal aid lawyers for doing a sterling job. But how can anyone consider that an adequate legal system?" Debono told MaltaToday.

Another anomaly concerns the source of these lawyers' meagre remuneration: the office of the Attorney General, which also represents the public prosecution.

"Having legal aid lawyers paid from the budget of the Attorney General, who is public prosecutor and thus in general an adversary to the same legal aid lawyers, is also of great concern," Debono said.

The Justice Reform Commission numbers among its proposals a revision of the legal aid system, and also proposes redefining the role of the Attorney General. But until such reforms are finalised, the entire system remains vulnerable to legal attack. Debono hints that Malta may be pressured into addressing the issue by European court judgments, as happened in the case of the right to legal assistance to persons under arrest.

"As a member of parliament I had issued a press release five years ago about the lack of legal assistance to arrested persons and the inadequate system of legal aid. As a lawyer I was the first to file Constitutional cases about the right to legal assistance for arrested persons, which I won. And everyone knows the enormous consequences of those judgments..."