Criminal investigation and human rights

It is not only the upgrading and fine tuning of the recently-introduced right of access to a lawyer during interrogation that must be considered but, rather, the whole investigative set up. This would include strengthening police and forensic facilities and also contemplating introducing specialised magistrates having exclusive and not just part-time investigative roles. Another important measure is the video recording of police interrogations.

As a practising criminal trial lawyer, the complete absence and exclusion of the legal counsel from the stage of police investigations used to strike me. However, when I used to raise the issue in various proceedings that a law had been enacted but not put into force the courts used to point out, and rightly so, that they apply the law and not enact it or put it into force.

So, when I was elected to Parliament in 2008, I spoke about the issue immediately and I urged the implementation of measures allowing access to lawyers during police investigations. This especially because a law unanimously approved by Parliament in 2002 had, as at 2008, not been put into force. After speaking in Parliament various times about the issue, in March 2009, I even issued a press release, urging the putting into force of such law.

In the meantime, in November 2008, the European Court of Human Rights ruled for the first time, in the Salduz case, that denial of access to a lawyer during police interrogation constituted a breach of fundamental human rights. This led me to demand constitutional referrals, claiming a breach of fundamental human rights, which resulted in the recent landmark judgments of Alvin Privitera and others. This has had a ripple effect on other cases, and will probably lead to a number of acquittals.

However, we must be prudent in our expectations because the remedies that will be accorded will surely vary from case to case and there seems to be no automatic right of acquittal as a remedy.

The implementation of this right, which came soon after I campaigned very strongly towards the end of 2009, was a good step in the right direction, an intermediate measure, rather, and I had immediately declared that it needs to be upgraded, fine tuned and ameliorated. This becomes even more necessary now in view of the recent judgments of the European Court (Brascoe vs France), which seem to require the lawyer’s presence during, and not just prior to, interrogation, as well as access to police files (rule of disclosure) at some stage and, more recently, due to the proposal by the European Commission and the obtaining situation in the vast majority of EU countries where these rights proposed by Brussels are already granted.

And it was precisely with this in mind, and on the suggestion of Justice and Home Affairs Minister Carm Mifsud Bonnici, that, as chairman of the Committee for the Codification and Consolidation of Laws, I convened a meeting in order to bring together prominent criminal lawyers, the Office of the Attorney General and high ranking police officers including the Police Commissioner. The idea was to compile a report, outlining the steps that need to be taken in respecting suspects’ human rights while, at the same time, strengthening the police force to be in a position to face these new challenges, thus also fulfilling our European obligations.

One of the very first laws passed through Parliament under the 1987 Nationalist Administration was that regarding the European Convention on Fundamental Human Rights. Nationalist governments have not only ensured respect of fundamental human rights but also progressively strengthened the police force, which has a crucial role in maintaining public order and solving crime. We must ensure that this balance between suspects’ rights and the right of society and the duty of the police to preserve public order is nurtured and maintained.

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Dr Debono, a criminal lawyer by profession, is a Nationalist MP and parliamentary assistant in the Office of the Prime Minister