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Fundamentally confusing

Much has been said and written about the supposedly fundamental human right to legal assistance during interrogation by the police. The issue has been keenly debated again and again and not merely in legal circles. It has also been the subject of a parliamentary motion that I presented a couple of years ago. A number of government backbenchers took advantage of the occasion to push heartily for this right to be affirmed. Though the legislation on this fundamental human right had in fact long been promulgated it was only finally put into effect some two years ago after all this political hype. Interestingly, in the aftermath of the now notorious judgment of the European Court of Human Rights (Salduz v. Turkey, decided on November 27, 2008) a number of Constitutional Court cases here in Malta were stimulated. Accused persons started claiming that their right to a fair trial had been breached owing to the fact that they had been denied access to a lawyer during interrogation.

There is a state of utter confusion on this issue and people are justly asking whether the right to legal assistance during interrogation is still to be considered fundamental
- José Herrera

Initially, the courts were proving to be rather reluctant to consolidate this irrevocable fundamental human right. As a point of interest, the first case to be decided in this regard was that of Lombardi, on October 9, 2009. Here, in essence, the first court refused to declare the relative statement as inadmissible. It held that if the statement was given voluntarily it should be considered together with all the other incriminating evidence.

This judgment, however, was duly overturned at the appeal stage. The Constitutional Court proceeded to deliver three landmark judgments on the issue, which were the Lombardi case itself (April 12, 2011), Alvin Privitera (April 11, 2011) and Esron Pullicino (April 12, 2011).

It seemed that the matter had finally been put to rest once and for all and that statements obtained in an illegal manner were to be disregarded.

Unfortunately, this notwithstanding, certain teething problems arose in the application of the principles established by the Constitutional Court. Primarily, it had to be decided whether the trial court would now order the removal of the statements from the acts of the case.

Before the Magistrates’ Court, this problem was easily overcome and in a very practical manner too. The magistrates would not order the removal of the statements from the acts but would ignore the contents of any statements illegally taken.

When it came to the Criminal Court, however, this issue was proving to be far more difficult to address. The Criminal Court decided to admit such statements in evidence but would then proceed to direct the members of the jury on the guiding principles established by the Constitutional Court.

This position, however, has justly encountered severe criticism in legal circles.

It has been argued that it would be unreasonable to allow the members of the jury to read the statement and then guide them to ignore its contents, in the hope that they would not be unduly influenced when reaching their verdict.

The position the Criminal Court adopted unfortunately led to more constitutional references. Unbelievably, and notwithstanding all the controversy that there had been on the issue, the Constitutional Court reversed everything in a judgment that was delivered on October 8, 2012, in the case Muscat vs the Attorney General.

This judgment went entirely against the unequivocal position taken by that same court barely a year and a half earlier.

I dare say that, once again, a state of utter confusion again prevails on this sensitive issue and the people are justly asking whether in Malta the right to legal assistance is still to be considered fundamental.

One may ask: quo vadis?

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