In 2011, the Constitutional Court handed down three judgments which recognised that the denial of the right to consult with a lawyer prior to police interrogation constitutes a violation of the fundamental human right to a fair trial. These three judgments loosely enshrined the concept found in the decision Salduz vs Turkey decided by the European Court of Human Rights (ECHR) in 2009.
The decisions of the Constitutional Court are flabbergasting- Ann M. Spiteri
With two judgments given in the past months by the Constitutional Court, Charles Steven Muscat vs Avukat Generali (Ref: 75/2010/1) and Jovica Kolakovic vs Attorney General (Ref: 50/2011/1), the little protection that had been afforded by the same court just a year ago was thrown out with little regard to the notion of legal certainty. What is most striking about these judgments is that they make it appear highly probable that the Constitutional Court did not even read the entire decision given in the Salduz case. A perusal of this decision shows that the argument of the Constitutional Court is clearly wrong.
In fact, in paragraph 23 of its decision, the ECHR explains that the evidence which had been produced against the applicant by the prosecution consisted in his statement, evidence given by the co-defendants, a police report on the incident and an expert report.
Reading further on, in paragraph 46, the Court explains that the Chamber had found that there had been no violation of applicant’s rights since applicant had been represented during the trial and appeal proceedings by a lawyer, and that the applicant’s statement to the police was not the sole basis for his conviction.
This notwithstanding, the ECHR unanimously decided that the applicant’s right to a fair trial had been breached.
It found that the benefit of legal assistance at the initial stages of police interrogation is required as a rule, which may, however, be subject to restrictions for good cause.
The jurisprudence of the court regarding the existence of an irrebutable presumption of a violation of the right to a fair trial in situations where restrictions to legal assistance prior to police interrogation are systematic, has thus far been entirely consistent.
In view of this, the decisions of the Constitutional Court, especially the ones given in Charles Stevens Muscat and Jovica Kolakovic, are flabbergasting. One wonders whether perhaps the Constitutional Court read the decision of the Chamber rather than that of the Court, considering that the interpretation of the Constitutional Court is consonant with the decision of the Chamber, which the European Court overturned. More shocking is that in the Kolakovic case, the Constitutional Court applied principles which are nowadays superseded, referring only to cases decided by the ECHR prior to Salduz, such as Imbroscia vs Switzerland, decided in 1993.
If the Constitutional Court had any doubt as to the proper interpretation of the ECHR’s decision in Salduz, all it had to do was refer to many other decisions given post Salduz dealing with the same matter, to quickly dispel its doubts. They are not very difficult to find, especially since a document has been compiled by the Grand Chamber’s Deputy Registrar giving a breakdown of the Court’s decision in Salduz and how it was applied in following decisions. For instance, in one of the cases cited in this document, Dayanan vs Turkey (2009) the ECHR decided that “[i]n itself, such a systematic restriction based on relevant statutory provisions warrants the conclusion that the requirements of Article 6 have not been met, irrespective of the fact that the applicant remained silent throughout his custody”.
Another mystery is the Constitutional Court’s justification of its conclusion based on a sentence found in Paskal vs Ukraine, to the effect that the level of expertise of a person should be taken into consideration to establish whether his consent to take part in the questioning was well-informed. What the Constitutional Court failed to take into account was that the ECHR was here considering a situation where the right to pre-trial legal assistance existed, but was waived by the applicant.
It is true that the Constitutional Court has a large caseload on its hands which exerts enormous pressure on it. However this does not justify handing down badly informed decisions. The decision of the ECHR in the Salduz case is not terribly long so it should not take too long to read, and ascertaining how the same court applied the principles enunciated in this decision is a very easy task with the use of all the technology available nowadays.
The Constitutional Court is the highest court in the country, and its position should be reflected in the calibre of its decisions.
Ann Spiteri is a lawyer and pursuing an Advanced Masters Degree in Public International Law at Leiden University.