Police and army stop and search powers in Malta are set to come under scrutiny after the European Court of Human Rights (ECHR) ruled that broadly similar provisions under UK anti-terrorism leglisation are too wide and interfere with an individual's right to privacy.
In Gillan and Quinton vs the UK, presided over by Maltese judge Giovanni Bonello among others, the ECHR held last January that there was a risk in such situations of individuals being victims of discrimination because they could be stopped on the basis of a 'hunch' or 'professional intuition'.
Unlike Malta, the UK has strict guidelines on stop and search procedures. However, its Terrorism Act grants police additional powers in order to protect citizens against "the grave threat of terrorism".
These powers are similar to those granted to the police and Armed Forces in Malta in everyday circumstances, particularly during roadblocks which are regularly set up around the island.
Leading criminal lawyer Emmanuel Mallia told The Sunday Times: "There is a serious risk of arbitrariness in the grant of such broad discretions to a police officer and it could also seriously increase the risk of discrimination."
Dr Mallia's comments support the ECHR ruling, which contradicted previous UK court judgments that the powers given to police were justified. The court objected to the fact that domestic law did not require any assessment of the proportionality of the measure - neither does Maltese legislation on the matter.
Last year, the AFM said it carried out 140 roadblocks, through which 1,159 vehicles were checked. A total of 67 individuals were detained on a variety of offences.
The vast majority of those stopped at vehicle checkpoints unnecessarily may argue that their civil liberties had been breached.
Recently, the AFM said eight people were held at roadblocks over the weekend - five of them were driving without a licence or valid insurance.
When The Sunday Times asked how many vehicles were stopped and how many people were searched over that weekend, the AFM failed to provide any information. But last year's figures clearly show that a disproportionate number of innocent citizens are stopped and searched for the detention of a few. This is a fact the ECHR objected to in its ruling on UK law.
In addition, the court stated that although the exercise of police powers was subject to judicial review, the breadth of the statutory powers was such that applicants faced formidable obstacles in showing abuse of power.
This is in line with an opinion expressed by lawyer Joseph Giglio, who said that citizens were not being given adequate and effective remedies to seek redress if there was an abuse in the exercise of powers in roadblocks.
Those who dared use their right to question local police ended up facing charges in court for having interfered or tried to influence people carrying out their duties, Dr Giglio said.
Although according to local legislation "reasonable suspicion" was a condition for vehicles to be stopped, there was no hard and fast rule. Once the roadblock is authorised by a high-ranking officer, everything boils down to the discretion of the person carrying out the exercise.
Dr Giglio said that while legal remedies against this abuse of liberty existed locally because individuals could sue for breach of human rights, in reality this measure was not adequate or effective enough and did not serve as sufficient deterrent for abuse. This was the point made by the ECHR in its judgment on the UK law when it upheld the citizen's claims that their rightrs had been breached.
Moreover, local law does not ensure the safeguards offered by UK law where an individual being searched must be told, among other things, the purpose of the search, the name of officer and the related police station and his rights under the law.
The individual must also be assured the search is authorised and he is also entitled to a copy of the record of the search, which officers must keep for each individual stopped.
In addition, the UK Secretary of State is obliged to publish information on the outcome of authorisations to stop and search people. And these annual reports reveal that discrimination regularly occurs. It is not possible to conclude whether similar discrimination occurs during roadblocks in Malta because such public reports are not obligatory.
Local laws are also unusual in permitting the military to conduct roadblocks, which is not usually allowed in western countries that are not at war. This results in scenes usually witnessed only in conflict zones, where personnel dressed in military fatigues conduct roadblocks.
Questions sent to the police to explain their code of conduct when searching people and the precautions taken to ensure civil liberties were not infringed remain unanswered, over a month after they were requested.
cmuscat@timesofmalta.com