Court dismisses statement to police after finding violation of arrested person's rights
The Constitutional Court declared today that the rights of an 18-year-old had been violated when he was not given access to a lawyer before he was interrogated, and a statement he had made to the police was, therefore, null and without effect.
This was the first decision of its kind in Malta involving an adult.
At the time when this case took place, in 2007, provisions on legal assistance to arrested persons had still not been brought into force, but Malta was party to the European Convention on Human Rights.
Mr Justice Raymond C Pace delivered the judgement following a constitutional reference made by the Magistrates' Court, which is hearing criminal charges against Alvin Privitera.
Mr Privitera was arraigned in court on drug charges in April 2009 but defence counsel Franco Debono claimed that the fact that his client had not had access to a lawyer when he was arrested was in violation of his right to a fair hearing.
The presiding magistrate proceeded to remit the issue to the First Hall of the Civil Court for a decision on the constitutional issue raised.
Mr Privitera had been arrested at his home in Fgura in April 2007 after he was strip searched in the presence of a number of policemen. When he was taken to Police Headquarters he was not interrogated for 17 hours. No explanation of the reasons for his arrest had been given to him and he was not aware of the seriousness of the charges against him.
He was interrogated over a period of two days, during which he was never assisted by a lawyer.
Mr Justice Pace said that this was the 18-year-old's first experience with the police and all this made an impression on him so that it appeared that he had, as a consequence, made a statement to the police.
The Court said that caselaw of the European Court of Human Rights had established that the right to a fair hearing required that the accused be given the benefit of the assistance of a lawyer even at the initial stages of police interrogation. The lack of such assistance would constitute a restriction of the accused's defence rights.
Mr Justice Pace declared that the fact that the accused had not been assisted by a lawyer was in violation of his fundamental human rights and his statement to the police was therefore null. The court ordered that a copy of the judgement be sent to the magistrate hearing Mr Privitera's criminal case.
Therese Comodini Cachia and Charmaine Cherrett also represented Mr Privitera before the Constitutional Court.
Lawyer Josette Demicoli appeared for the governemnt.
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M Chetcuti
Oct 29th 2010, 06:53
The right for a lawyer to be present during interrogated should be part and parcel of a person's right. AS it is at the moment a person is at the mercy of the Police.
Joseph Carmel Chetcuti
Oct 29th 2010, 06:21
Malta is a small country and police should received the adequate training in how to interview those suspected of a criminal offence. Surely any policeman and woman who after having received such training behaves in a manner that disregards the human rigjhts of those suspected should be booted out of the force. Zero tolerance I say. Such interviews should also be videoed as happens in Australia.
J. J. Borg
Oct 28th 2010, 20:28
Finally a step in the right direction.
Dennis Zammit
Oct 28th 2010, 19:34
Are we serious ?????????
This ridiculous judgement means that ALL cases from the date Malta joined the European Convention on Human Rights can be nulled immediately if they had been found guilty based on their free statement declaring themselves guilty of the crime without consulting a lawyer; a consent that was not legal in Malta at that time.
Thanks Hon. Dr. Franco Debono and Mr Justice!!
Let us now wait for a big wave of appeals from many others.
Joseph Schembri
Oct 28th 2010, 18:48
This is a landmark judgment! Well done to lawyer and Nationalist MP Franco Debono for taking the police and indirectly the Justice minister up on this fundamental issue.
Does this mean that all statements given to the police can now be put under question seeing that the right to consult with a lawyer by telephone was only granted a few short months ago?
Again I compliment Franco Debono on his persistent stance when it comes to discrepancies in our justice system. Earlier this year he had written in the Times about another discrepancy which is the abnormally high age of consent in Malta. Even the opposition spokesman Dr. Jose Herrera is in agreement with lowering the age of consent as it is the highest in Europe, is higher than the age at which one can get married and is sending many decent people to prison.
D.Galea
Oct 28th 2010, 18:36
Does this mean that everybody awaiting trial can now sue for the same breach of human rights?
Frank Portelli 2BFRANK
Oct 28th 2010, 18:04
A sound Judgment in favour of human rights
Suspects remain Innocent until proven guilty.
Our Constitution states that Malta is a ‘democratic republic with respect for the fundamental rights and freedoms of the individual’.
Police “Interviews”.
Besides access to a lawyer Video-Recording of "interviews" with suspects should be established withou further delay.
In many countries the procedure involves the making of 3 copies of the “interview” ( interrogation).
a master-copy,
a working-copy,
and a copy for the defence.
This guarantees a suspects rights
It also ensures that admissions of guilt are acquired fairly and after due caution according to the law.
Needless to say it also makes these statements admissible evidence in court.
In the public’s mind our police depot remains associated with the torture and murder of Nardu-Debono whilst under police custody.
A Commissioner of Police (Pullicino) guilty of having failed his duty to protect an arrested persons.
At he time Malta’s Prime Minister considered Malta’s Constitution no more than “ Anchovy Wrapping Paper”.
Dr Frank Portelli
J Oatmon
Oct 28th 2010, 20:11
I agree100% - in fact I think all interviews should be video recorded and so should all major court sittings. If this is done it will improve transparency and go some way to restoring the public's faith in the discredited Malta courts system, as well as the police. Secrecy breeds corruption and bias.
Joe Cassar
Oct 28th 2010, 20:15
And yet it was Dr Fenech Adami (as PM) who was twice found guilty of breaching human rights by the courts.
Frank is is nor vcery frank, when it suits him.
Pamela Hansen
Oct 28th 2010, 17:26
Quite right. It is appalling that "provisions on legal assistance to arrested persons had still not been brought into force" in 2007, the time when this case took place.