Caroline Muscat
Random stop and search is 'illegal'
Questions raised about abuse of power
One of several army roadblocks. Photo: Martin Agius - AFM.
Police and army stop and search powers in Malta are set to come under scrutiny after the European Court of Human Rights (ECHR) ruled that broadly similar provisions under UK anti-terrorism leglisation are too wide and interfere with an individual's right to privacy.
In Gillan and Quinton vs the UK, presided over by Maltese judge Giovanni Bonello among others, the ECHR held last January that there was a risk in such situations of individuals being victims of discrimination because they could be stopped on the basis of a 'hunch' or 'professional intuition'.
Unlike Malta, the UK has strict guidelines on stop and search procedures. However, its Terrorism Act grants police additional powers in order to protect citizens against "the grave threat of terrorism".
These powers are similar to those granted to the police and Armed Forces in Malta in everyday circumstances, particularly during roadblocks which are regularly set up around the island.
Leading criminal lawyer Emmanuel Mallia told The Sunday Times: "There is a serious risk of arbitrariness in the grant of such broad discretions to a police officer and it could also seriously increase the risk of discrimination."
Dr Mallia's comments support the ECHR ruling, which contradicted previous UK court judgments that the powers given to police were justified. The court objected to the fact that domestic law did not require any assessment of the proportionality of the measure - neither does Maltese legislation on the matter.
Last year, the AFM said it carried out 140 roadblocks, through which 1,159 vehicles were checked. A total of 67 individuals were detained on a variety of offences.
The vast majority of those stopped at vehicle checkpoints unnecessarily may argue that their civil liberties had been breached.
Recently, the AFM said eight people were held at roadblocks over the weekend - five of them were driving without a licence or valid insurance.
When The Sunday Times asked how many vehicles were stopped and how many people were searched over that weekend, the AFM failed to provide any information. But last year's figures clearly show that a disproportionate number of innocent citizens are stopped and searched for the detention of a few. This is a fact the ECHR objected to in its ruling on UK law.
In addition, the court stated that although the exercise of police powers was subject to judicial review, the breadth of the statutory powers was such that applicants faced formidable obstacles in showing abuse of power.
This is in line with an opinion expressed by lawyer Joseph Giglio, who said that citizens were not being given adequate and effective remedies to seek redress if there was an abuse in the exercise of powers in roadblocks.
Those who dared use their right to question local police ended up facing charges in court for having interfered or tried to influence people carrying out their duties, Dr Giglio said.
Although according to local legislation "reasonable suspicion" was a condition for vehicles to be stopped, there was no hard and fast rule. Once the roadblock is authorised by a high-ranking officer, everything boils down to the discretion of the person carrying out the exercise.
Dr Giglio said that while legal remedies against this abuse of liberty existed locally because individuals could sue for breach of human rights, in reality this measure was not adequate or effective enough and did not serve as sufficient deterrent for abuse. This was the point made by the ECHR in its judgment on the UK law when it upheld the citizen's claims that their rightrs had been breached.
Moreover, local law does not ensure the safeguards offered by UK law where an individual being searched must be told, among other things, the purpose of the search, the name of officer and the related police station and his rights under the law.
The individual must also be assured the search is authorised and he is also entitled to a copy of the record of the search, which officers must keep for each individual stopped.
In addition, the UK Secretary of State is obliged to publish information on the outcome of authorisations to stop and search people. And these annual reports reveal that discrimination regularly occurs. It is not possible to conclude whether similar discrimination occurs during roadblocks in Malta because such public reports are not obligatory.
Local laws are also unusual in permitting the military to conduct roadblocks, which is not usually allowed in western countries that are not at war. This results in scenes usually witnessed only in conflict zones, where personnel dressed in military fatigues conduct roadblocks.
Questions sent to the police to explain their code of conduct when searching people and the precautions taken to ensure civil liberties were not infringed remain unanswered, over a month after they were requested.
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Conrad Costa
Mar 22nd 2010, 16:23
May i draw your readers' attenton to the following quote:
Privacy protects us from abuses by those in power, even if we're doing nothing wrong at the time of surveillance. ... Privacy is a basic human need.
Too many wrongly characterize the debate as "security versus privacy." The real choice is liberty versus control. Tyranny, whether it arises under threat of foreign physical attack or under constant domestic authoritative scrutiny, is still tyranny. Liberty requires security without intrusion, security plus privacy. Widespread police surveillance is the very definition of a police state. And that's why we should champion privacy even when we have nothing to hide.
-Bruce Schneider
I would certainly NOT look to the UK as an example of how things should be. Look at this video in the Guardian online that goes to show how sad and sorry the state of affairs with regards to stop and search in the UK: http://www.guardian.co.uk/uk/2009/dec/11/snapshot-special-branch-terror-suspect
All in the name of counter-terrorism.
God help us all
E.Schembri
Mar 22nd 2010, 13:07
Many people are mis-informed. You car is NOT your private space such as your home is, hence the reason it is illegal to perform sexual acts in your car. Therefore, while a court warrant is required to search your home, this is not required for a car search.
Road blocks protect the citizens, and from my experience, I have never encountered abuse of power in a road block. The officers where always polite and educated. If the possibility of abuse is worrying, then the authorities must restructure the mechanism for one to report such abuse. For example having the officers identify themselves and giving us a copy of the report of the search is a very good idea.
However, eliminating roadblocks is sending out the message to criminals that they are less likely to get caught, and we can only expect more firearms and knives in road rage attacks.
We not only need more road blocks, but more police patrols and more CCTV camera's.
If you are afraid of these and think otherwise, then you have a criminal intent.
Ryan Falzon
Mar 21st 2010, 22:37
It amazes me to see people writing that "only those who have anything to hide are against such roadblocks". Well funnily enough it is always a car full of young people that is stopped. I think that this "professional intuition" is rubbish! I was one of those who was stopped by the AFM in that particular roadblock in Rabat. We were 5 people in a car. My friends driving behind us who were just a couple, were not stopped. But anyhow, while waiting in the car for about a long hour for our turn to be humiliatingly searched in full view of the passing cars, we were not allowed to use out mobile phones and we were ordered to close all our windows without allowing us a breath of fresh air. We were not even allowed to speak during the wait and were at the constant supervision of an officer. The search was quickly done in a few minutes, till they had another hunch and we were allowed to go.Thumbs up to the ECHR. It is definitely unfair and eventually becomes annoying.
Romano Tebaldi
Mar 21st 2010, 22:28
Another present to the scores of drug pushers infesting the island. I totally support the work of the AFM and I would like to see more road blocks.
colin stanley
Mar 21st 2010, 22:17
@ Mr. C. Bajada. when is the last time the police came and searched your house?
@ Mr. M. Cassar. if just a few roadblocks don't solve the criminality, why are you complaining, it doesn't happen often, so what are the odds of you being stopped?
@ Mr. Joe Camilleri. now you are saying that if you wear a hunter's shirt you will be discriminated against, later we will have a lot that say, they were discriminated, because they are biack. wait for it, this will make a lot of business for the lawyers. I was stopped a few times while driving, but if you are civil with them, they are polite to you, simple as that.
C. Bajada
Mar 21st 2010, 21:16
@L. Cutajar, T. Camilleri, Charles Falzon
As you do not have nothing to hide, would you surely won't mind daily police searches in your home. You should also set up a live video feed to the state as you also have nothing to hide. You might also get more ideas from George Orwell's 1984 security manual on how to make Malta a safer nation.
Whether or not I have anything to hide, my home, my car and my pockets are my personal space and no authority, let alone dogs should invade this personal space without reasonable suspicion.
@N. Lawrence
I hope your comment was sarcastic, it's humiliating that the ARMED FORCES OF MALTA are checking for insurance papers!
@Sandro Pace
"I do not know why every time there is something giving results, a European court of human rights jumps in to disrupt it"
What results? 5 people without insurance and a couple of joints yee-haw!
Christian Sciberras
Mar 21st 2010, 21:02
Well, at least I can affirm that it worked while it lasted.
Hope that HUMAN RIGHTS do not get mangled with TERRORISM in the future.
John Montague
Mar 21st 2010, 20:03
When Malta joined the EU, we agreed to abide by European law. It becomes folly to discuss whether road blocks are good or bad. They are legally wrong, and expose Government to expensive fines and costs. Malta will simply have to regulate vehicle usage electronically.
Membership within the EU offers attractive advantages, but also brings costs and liabilities.
Wake up and smell the coffee. Your right to privacy and security is there to be enjoyed. If you are concerned about unlicensed drivers, complain to your MEP. S/he is bound to revert to Government. If s/he does not, you may consider stronger action.
Make this work for you and stop moaning about it. It's there and you can't change it anyway.
N.Lawrence
Mar 21st 2010, 19:24
Recently, the AFM said eight people were held at roadblocks over the weekend - five of them were driving without a licence or valid insurance.----
This statement alone validates the reason for road blocks.
Raymond Sammut
Mar 21st 2010, 20:13
Before you drew your conclusion, you needed to read also the next paragraph:
"When The Sunday Times asked how many vehicles were stopped and how many people were searched over that weekend [the weekend you referred to], the AFM failed to provide any information. But last year's figures clearly show that a disproportionate number of innocent citizens are stopped and searched for the detention of a few. This is a fact the ECHR objected to in its ruling on UK law."
What you have quoted is not the full story.
The keyword here is "disproportionate". People driving without a license or a valid insurance policy is an issue solely for the police and not the army. Good police training and applying severe penalties should be enough to prevent this type of offenses on the road. You just have to make people think twice before they offend, without the need to intrude in such a drastic way.
Steve Mizzi
Mar 21st 2010, 19:21
I propose that all those in favour of road blocks and random searches should have a cameras installed in their home and a tracking device attached to their ankle...
Who said that George Orwell's predictions were wrong.
Wake up people and treasure your civil liberties, it is not right to arbitrarily invade the privacy of thousands to aprehend a few dozen people.
As for the AFM carying out such tasks; do these people who are so much in favour of having their civil liberties trampled know that while they are waiting to be searched, there most probably is a trigger happy 18 year old hidden away aiming a gun (most probably an ancient AK-47 that was a hand me down in the 70s) at them acting out his GI Joe fantasy instead of spending time at the barracks learning how to read and write.
Charles Falzon
Mar 21st 2010, 19:00
I do not regard ' stop and search' as a breach of one's rights. I have nothing to hide and may they continue.
Moses Mula
Mar 21st 2010, 18:26
As Jeremy Camilleri rightly pointed out, pros and cons have no relevance when something that is being done is illegal. One has to accept that certain rules have to be accepted even if they do go in according with your opinion and way of thinking. Malta has around 400,000 citizens, and it seems to me that each and everyone wants an individual set of rules. That makes for around 400,000 dictators.
Raymond Sammut
Mar 21st 2010, 19:35
All that Jeremy Camilleri said was: "Why does everything here end up in a pro and against debate? If the ruling is that pick and mix roadblock s are illegal, then they must be stopped...."
What has this got to do with 400,000 dictators, Mr Mula? And if the Maltese people were dictators, who would be able to stop them on their own road network which they fund with their own taxes?
T Camilleri
Mar 21st 2010, 22:03
Mr Mula, the European Court has no right to interpret our laws. That is an internal matter for us to decide. The European Court has to show that our laws are against the European Convention on Human Rights and I don't believe that they are so if the European Court thinks that it can enforce its decision let it try. We can always leave the Convention and they can do nothing about it. This is similar to its decision about crucifixes so it seems that the Court is interfering in areas where it should not interfere with because it has no competence to do so. If ti continues like this countries will drop out of the convention because they will be left with no other choice to protect themselves from the Courts interference in their internal affairs.
Michael Neville Cassar
Mar 21st 2010, 16:54
I honestly see nothing wrong with being checked at least it is a deterrent to dishonest culprits.
J. J. Borg
Mar 21st 2010, 15:29
About time this gets medieval practice gets outlawed. Thank heavens for European institutions and their capacity to reign in arbitrary powers of the state.
Wilfred L Camilleri
Mar 21st 2010, 13:42
Random stop and search by the police and AMF smack of a police state. Remember the USSR anyone? I have no problem with someone being stopped if the police suspect someone is committing a criminal offense or if they are breaking traffic rules. But otherwise it is abuse of power and can also lead to discrimination. The Armed Forces should not be involved at all. That is not their mission. It is amazing that many people are so ready to give up their civil liberties just because they have nothing to hide. That is not the point. What's next? The police having the right to enter your house at any time to check if you're doing something illegal in there? Come on folks. This is a slippery slide that's eroding civil liberties and the right to privacy.
Raymond Sammut
Mar 21st 2010, 15:10
Why are you picking on the USSR? The Red Army still exists today, and they do not set up road blocks and search civilian cars --that is the role of the Russian police, and the Red Army has far more important things to do. The army, like in any other country, is called in only under extreme conditions such as public unrest and terrorist attacks, common for example in the North Caucasus.
Malta is only a small island, and there should never be any need to stop vehicles, let alone using the AFM for such a task. Normally, a road block is set up by the police for the purpose of searching vehicles following an abnormal rise in crime rate and a public call to government authorities to take action. But if prevailing crime levels are within statistical tolerances, then there should be no justification for the police to set up road blocks. This is the case everywhere. It's a case of using scarce national resources wisely.
J Farrugia
Mar 21st 2010, 13:38
why not remove the police force and the army to protect its citizens and let Manuel Malluia protect us from criminality? This is truly absurd. I have nothing to fear by being stopped and controlled by polcie and afm members. Since I am doing nothing wrong,. It's only criminals who object to their being pestered by the security forces, not the common honest citizens. IF and only If there is abuse of power from the security forces, should action be taken against the uniformed perpetrators because there will be some bad apples in the forces. But on the whole such searches yielded fruitful results in criminals being stopped and arrested on the spot. The citizens want peace of mind and security. And the forces of law and order are just doing that. And I hope the ECHR wont obstruct justice.
Jeremy J Camilleri
Mar 21st 2010, 13:15
Why does everything here end up in a pro and against debate?
If the ruling is that pick and mix roadblock s are illegal, then they must be stopped....
martin saliba
Mar 21st 2010, 12:50
I would not mind being stoped once in a while as long as others are as well. These so called road blocks have served their purpose well as we all know that drug traffickers have been caught. I would even go further and have a whole area blocked such as chirkewa before a long weekend. Human rights are a god send but they sometimes also serve to give criminals some degree of protection. Lawyers only talk this way in preparation of defense for prospective clients.
victor vella
Mar 21st 2010, 12:17
@Mcassar you are iether an addict or else you do not have kids of your own.Regarding the Checkpoints, I can say one thing, I have been through some both now and under the socialist goverment of the 80's, The soldiers and police are doing thier job, treat them with respect and you get the same back,I remember once my 1 year old daughter was crying while we were waiting our turn, a soldier heard her, asked me if she was sick and when I said that it was her feeding time he went to his officer and on his return he simply took my car number down and sent me on my way.So please cut the BS and keep the road blocks and check points, liberty is a beutifull thing but criminals use it for thier ends.The American people love the liberty of simply walking to a plane and take off with out any checking and formalities, look where it led them.
J.Farrugia
Mar 21st 2010, 12:03
@Adrian Aquilina: Great, now we know what your hidden agenda is; you literally are afraid of anybody barking (or meowing :) at your tree.....I mean, door.
Adrian's antics aside......how can he expect the authorities to do their job.....when people like himself refuse to allow them to do it?
Chris Grillo
Mar 21st 2010, 12:02
An Honest Joe like me simply has nothing to fear....why is it a problem? If these guys save even one life with their work, that is already enough for me.
Many people have to understand that their actions are simply not tolerated..the way they drive, or having narcotics on-board, or even under the effect of alcohol...how many people have lost loved ones because of the darned alcohol abusers (I said abusers, not users...ghax hawn kullhadd jeqred!)....I am afraid to go out on my bicycle unless it is before 6pm...so many maniaces on the road.
I don't mind being stopped...I guess it's time the moaners stopped moaning and the honest people reclaim the peace of mind on the roads.
T Camilleri
Mar 21st 2010, 13:34
I don't either.
Joe Camilleri
Mar 21st 2010, 11:57
" individuals being victims of discrimination " just wear a green shirt during the hunting season and you are sure to be stopped, questioned and searched.
vfarrugia
Mar 21st 2010, 11:45
Personally I would rather have a polite police officer stop me, ask for I.D. / driving licence, and move on, even if they find just 1 uninsured driver, than have my car totalled by such a driver, and remain without compensation. My father's car was totalled by an uninsured driver, there is no way that he will ever receive compensation for his loss, unless he sues personally the driver in court.
The honest, law-abiding citizen has nothing to fear. It's the criminals who should be scared. Let the roadblocks continue, I don't mind getting at my destination 5 minutes late.
T Camilleri
Mar 21st 2010, 13:33
You are right. It is only those who have something to hide do not want these roadblocks.
J. J. Borg
Mar 21st 2010, 15:33
According to this argument we should also be regularly called over to police HQ at any hours of the day for random questions. Or perhaps given a full body search in the middle of the streeet in case we are carrying drugs or illegal weapons. This should not bother most of us either since we have nothing to hide. I think not.
vfarrugia
Mar 21st 2010, 18:17
J J Borg, if the police or army has any suspicion that anyone has turned his/her body into a weapon, then yes, they should have the right to perform strip searches. Would you rather 'suffer the indignity' of a strip-search, or be blown to bits by a suicide bomber?!
Unfortunately peace of mind comes at a price.
M Cassar
Mar 21st 2010, 11:19
sandro pace ..if you think arresting a 17 yr old for years just for getting caught with a marijuana cigarette or months just for finding a few remaining ashes then I guess you have your proirities wrong. People will never stop drugs out of fear for the law. IT WILL NEVER WORK IT IS A WASTE OF MONEY (law, prisons) and a waste of people's lifes which is much worse. Let alone this person will never get a decent job again, will end up on relief, the crimes (which is huge) associated with drug use due to its pricing etc. and the argument that then one can kill himself (or others) with alcohol or cigaretes. Prohibition never worked. It didn't work in Al capone's times...it never will now. My opinion. Decriminilise all drugs, supply all drugs, get Caritas to build a huge facility and pick all (volontarily and with privacy if we know what that means that is) the drug abusers for a long programme that outshines the benefits of life without drugs. Otherwise we're fighting a LOST BATTLe and drug use is rampant in Malta a few roadblocks are just a drop in the ocean.
Albert Farrugia
Mar 21st 2010, 10:44
...and the Nationalists have the cheek to say that Malta was a police state only in the 80s...
sandro pace
Mar 21st 2010, 10:43
I do not know why everytime there is something giving results, a European court of human rights jumps in to disrupt it. Yes of course, this work involves arbitrariness and discrimination, which goes with discretion and experience. So what? Are we expecting police to search only those who tell them "I am a potential terrorist or a criminal, search me".
I hope UK and Malta ignores such ridiculous rulings, for retaining safer countries. I prefer 1000 disgruntled people than being blown by a terrorist.
If the 'many' are not searched to capture the 'few', than those 'few' will never be captured. It's statistical. Let the police work, with citizen safeguards of course, but not tied with whom should they search or not. We cannot expect police to be spot on.
T Camilleri
Mar 21st 2010, 13:31
I also hope that all the countries will disregard the stupidity of the european court.
It similar to the judgment earlier on that banned crucifixes from public places.
How about the court telling us how are we to protect as much as possible against criminality?
adrian aquilina
Mar 21st 2010, 10:40
at last we can stop this disgracefull stop and search..no other civilised country would stop anyone for no reason let alone invade their personal space with no proof...maybe now the police can be taught how to actually solve crimes..hey,maybe our police wont be so lazy.short story,we have a pack of dogs in sweiqi,2 nights they were at my door and one cat was out,phoned police and they said they dont do anything until someone is hurt..i said thats too late then.the police are supposed to stop people,animals etc from being hurt.and also dogs in the street are illigal..she said nothing..useless
T Camilleri
Mar 21st 2010, 13:29
If you have nothing to hide you wouldn't mind being stopped.
L. Cutajar
Mar 21st 2010, 10:31
Whenever there is a oad block by the police I feel safe. Infact I'm in favour and encourage the police to effect more frequent road blocks (stop and search) both during the pay and night. It is only those who have interest and their personal agenda who need to worry and not the honest citizen. Of course lawyers will be in the fore front to weaken security in our islands and we should be aware of what they have to gain from reducing police powers. After all in the UK the situation is the same as in Malta and the British citizens are in their majority in favour of frequent police stop and search inspections during road blocks.
Eric Soames
Mar 21st 2010, 10:30
"Questions ........... remain unanswered, over a month after they were requested."
As they will remain and the government will drag its feet and delay implementing any reform that will be deemed to limit power.
D. Scerri
Mar 21st 2010, 11:11
It's actually because they cannot read.