A constitutional court has declared that every suspect has the right to be assisted by a lawyer during police interrogation and that any statement released without such assistance cannot be used as evidence during criminal proceedings.

Italian national Aldo Pistella was arrested after being found in possession of suspected cannabis in October 2014. Appearing confused and agitated, he was escorted to the police headquarters at around 10pm and was allowed to sleep.

The next morning, he was granted permission to speak to a lawyer before questioning. However, in accordance with the law applicable at the time, no lawyer was present to assist the suspect during police interrogation.

Mr Pistella had answered questions in relation to his suspected involvement in drug trafficking, even admitting that he knew that what he had done was illegal in Malta. When, at one point, the man was hesitant to reveal the identity of third parties allegedly involved in the criminal activity and asked to consult a lawyer, this request was not allowed.

In the course of criminal proceedings, it was argued by the defence lawyer that since his client had not been assisted by a lawyer when releasing a statement to the police, his right to a fair hearing risked being breached if this statement were to be brought as evidence against him.

The issue prompted a reference to the First Hall, Civil Court in its constitutional jurisdiction, which confirmed that although the suspect had spoken to a lawyer before his interrogation, no lawyer was present to assist him while being questioned.

Making extensive reference to both local and EU case-law, the court, presided over by Mr Justice Joseph Zammit McKeon observed that the use of such a statement to incriminate the accused clearly violated his right to a fair hearing as safeguarded under Article 6 of the European Convention.

Moreover, an EU Directive, which earlier this year became part of Maltese law, provided expressly that “member states shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned.”

For this reason, the court declared that the accused's statement was not to be taken as evidence against him and referred the case back for continuation before the magistrate's court.

Expenses related to the case were to be borne by the Police Commissioner and the AG.

Lawyer Arthur Azzopardi was defence counsel.