The phrase ‘I want to see my lawyer’ blurted out by arrested suspects has been etched in popular psyche during police films but the perception that this right has always been available to Maltese is incorrect.

The provision had formed part of wide-ranging legal changes enacted by Parliament in 2002 but it was not activated until February last year.

Under pressure from one of its own backbenchers, Franco Debono, the government published the relevant legal notice, making it possible for arrested suspects to consult their lawyer for an hour before being interrogated by the police.

The decision brought Malta in line with judgments delivered by the European Court of Human Rights, which on more than one occasion decreed that denying an arrested person the right to see his lawyer was in breach of the fundamental right to a fair trial.

But the government’s reluctance over the years to recognise this right has landed the criminal justice system in hot water.

The first signs appeared last month when in a landmark decision, the Constitutional Court held that the right to a fair trial was breached of a man arraigned on drug-related charges, because he was not given the opportunity to consult a lawyer before making a statement to police. Since then, two more cases were decided in a similar manner, and two trials were put off, pending a decision by the Constitutional Court raising fears that the justice system will grind to a halt.

Joe Giglio, a top criminal lawyer, is less fatalistic in his assessment but no less scathing in his criticism towards legislators for allowing the situation to reach this stage.

“What is happening is a result of the legislator’s reluctance to take note of developments in the European Court of Human Rights. For years, we either slept on them or perhaps pretended they were not happening.”

Dr Giglio said that in ordinary criminal cases, the courts could use the Constitutional Court’s guidelines and decide for themselves whether an arrested suspect’s rights were breached and what remedy to apply.

However, the situation is different for jury trials, where he believes it is very difficult for jurors to be asked to decide on such a matter.

“It does not fall within the remit and competence of jurors and in such cases the judge would do well to refer the matter to the Constitutional Court,” he says.

Case law shows that the ECHR has on at least three occasions recommended a retrial as a remedy. This means that the criminal process would be quashed and the sentence revoked, giving the accused a second chance.

In this eventuality, it is likely that any police statement obtained without the detained person having first consulted a lawyer will be rejected.

Only last week, a man currently serving a nine-year jail term on drug-related charges filed a constitutional application asking for his sentence to be revoked.

His lawyer Jose Herrera, who is also Labour’s justice spokesman, is arguing that the only significant proof against his client was a statement he made to police, obtained at a time when detained suspects were not afforded the right to speak to a lawyer.

For Dr Debono, the Nationalist MP who convinced the government to introduce the legislation last year, the situation today is a result of the systematic breach of fundamental human rights that was allowed to go on for years.

“Potentially, every police statement taken before February 2010 was taken in breach of a person’s fundamental human rights. As a consequence, every criminal case before that time risks being jeopardised,” he said, emphasising that his insistence with the government to treat this matter seriously was vindicated by the judgments of the Constitutional Court.

But while legislators shoulder the brunt of criticism for sitting on their palms, George Busuttil from the non-governmental organisation Mid-Dlam għad-Dawl, which works with prisoners and their families, believes it was the police who were reluctant to allow arrested people the right to consult a lawyer. “The police were always against this and now it is coming back to haunt them. Unfortunately, good police work risks being lost because human rights were breached. Irrespective of what a person may be accused of, he still has rights that need to be protected,” Mr Busuttil said.

With another jury tomorrow likely to become the third in a row to be suspended, the country continues to count the cost of past delays to introduce laws to respect people’s rights while under arrest.

The right to speak to a lawyer

At least three landmark European Court of Human Rights judgments involving Turkish and Cypriot citizens had established that denying an accused person the right to consult his lawyer was in breach of thefundamental human right to a fair trial.

In Salduz v Turkey, Ocalan v Turkey and Panovits v Cyprus, the ECHR proposed a retrial as a remedy for the breach of human rights.

The landmark decision

Case: Police v Alvin Privitera
Date: April 11, 2011

The Constitutional Court of Appeal confirmed a judgment which found that the rights of Mr Privitera were violated when he was not assisted by a lawyer during police interrogation. The original case was decided by the Constitutional Court in October 2010.

Mr Privitera, then 18 years old, had been arrested at his Fgura home in April 2007 and was immediately interrogated.

The questioning continued at Police Headquarters in Floriana but at no point was he assisted by a lawyer.

Mr Privitera was eventually arraigned on drug charges in April 2009 but his lawyer, Dr Debono, challenged the fact that his client was denied access to a lawyer, insisting it was in breach of his right to a fair hearing.

The court of first instance had commented on the fact that the teenager was subjected to a strip search at his home in the presence of a number of police officers, stating that the situation left such an impression on him it appeared he had, as a consequence, made a statement to the police.

It also pointed out that Mr Privitera was left in a holding cell for 17 hours when he was taken to police headquarters before he was interrogated.

Mr Privitera’s statement to police, the court said, had to be considered in the light of these facts.

The court ruled that case law 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.

While in the original decision the court had said that the statement of the accused should be considered null and void, the appeals court refrained from administering any remedy, choosing instead to pass the matter over to the criminal court.

In a court application filed this week, Mr Privitera’s lawyer called on the criminal court to declare all proceedings null and void given that his client’s fundamental human right to a fair trial had been breached.

Alternatively, the court should order the statement to be disregarded since it was obtained in breach of Mr Privitera’s human rights.

The case was put off to June 22.

Just a day after Mr Privitera’s case was decided, similar judgments were delivered by the Constitutional Court in another two cases involving MarkLombardi, who was facing drug trafficking charges, and a minor charged with drug possession.

ksansone@timesofmalta.com