A man convicted of drug offences had filed a judicial protest holding the authorities responsible for damages after the European Court of Human Rights yesterday ruled that the Maltese Constitutional Rights was wrong when it found there was no breach of his rights when he was interrogated without the presence of a lawyer.
The European Court ruled that legal assistance should be a general rule and this right should be granted from the initial stages of investigations, except in exceptional cases.
The European Court also ruled that the rights of the suspect were prejudiced when he made a statement which could incriminate him, without having consulted a lawyer.
The judicial protest was filed by Mario Borg, who had been arrested in April 2003 on suspicion of importing and trafficking drugs. He had subsequently given a statement to the police without being given the opportunity to be assisted by a lawyer.
At the time the law did not provide for legal assistance to people under arrest.
Mr Borg was subsequently convicted and the sentence was confirmed on appeal.
Mr Borg had filed proceedings before the Constitutional Court where he argued that the absence of the law on legal assistance was a breach of the Constitution and the European Convention on Human Rights.
The Constitutional Court had dismissed his case and Mr Borg therefore took the case before the European Court.
\In a consenting opinion, judge Pinto de Albuquerque referred to another case (known as the Salduz case) and said that:
"In spite of the crystal-clear course taken by the Court towards reinforcing the right to legal assistance for defendants from the very beginning of the investigation and particularly when in police custody or during police questioning, the Constitutional Court of Malta chose to contradict the letter and the spirit of the Grand Chamber’s judgment, introducing a broadly formulated caveat to its applicability: the vulnerability of the defendant.
"No plausible grounds were given for this radical change from the same Constitutional Court’s prior case-law, which had specifically denied the “decisive” role of the age or vulnerability factor in the determination of the Salduz right to legal assistance. Worse still, no specifics were provided as to the relevant characteristics of vulnerable persons. On this fragile legal basis, the impact of the Grand Chamber case-law was, in practical terms, limited to “exceptional” cases."
In his protest Mr Borg reserved the right to institute fresh proceedings in view of the consequences of the breach of rights he had suffered when his case was heard in Malta.
Lawyers Franco Debono, David Camilleri, Joseph Gatt and Marion Camilleri signed the protest.