Man refused legal aid during interrogation, given €3,500 compensation

A court has ordered the Commissioner of Police and the Attorney General to pay €3,500 in compensation to a man charged with cocaine trafficking on the strength of a statement he had made without the assistance of a lawyer, two days after a Malta received an unprecedented tongue-lashing by the European Court of Fundamental Human Rights for allowing this practise in the past.

Malcolm Said had been arrested in 2008 on suspicion of cocaine possession and had released a statement to the police in August of that year, admitting to occasional cocaine use. As the right of a suspect to consult with a lawyer before his interrogation had not yet been enshrined in Maltese law, Said had released his statement unaided – a fact which he said had deprived him of his right to a fair hearing.

The decision echoes Wednesday's ruling by the ECHR, in the case Mario Borg v Malta, which held that there had been a “violation of Article 6 § 3 in conjunction with Article 6 § 1 (right to a fair trial and right to legal assistance of one’s own choosing) of the European Convention on Human Rights, when the accused in that case, Mario Borg, had not been assisted by a lawyer during his questioning, in the absence of any provisions of Maltese law allowing such assistance at the time.”

”The Constitutional Court of Malta," the ECHR said, "chose to contradict the letter and the spirit of the Grand Chamber’s judgement, 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 Court’s prior case-law, which had specifically denied the ‘decisive’ role of the age or vulnerability factor.” 

In 2013, nearly five years after he was questioned, Said was finally charged with possession. Criminal proceedings against Said are still ongoing.

Constitutional proceedings were filed in 2014, with Said's legal team - lawyers Franco Debono, Amadeus Cachia and Angie Muscat - arguing that not only had his right to legal assistance during questioning been breached, but in view of the half-decade gap between questioning and arraignment, so too had his right to justice within a reasonable time.

In a judgement handed down yesterday by the First Hall of the Civil Court in its Constitutional Jurisdiction, Madame Justice Jacqueline Padovani Grima held that the right to legal assistance during interrogation is one of the basic guarantees of a fair hearing and an essential aspect thereof.

The court pointed to landmark case Salduz v Turkey, decided in 2008 at Strasbourg, which held that “the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

The judge noted that, however, the Maltese courts had consistently disregarded this and had added the condition, where in order to benefit from this right, the person interrogated had to prove that it had been under age, or otherwise vulnerable to coercion at the time of the statement's release.

That all changed last Tuesday, however, when the European Court of Human Rights ruled that this Maltese legal peculiarity was in stark violation of the European Convention and “reflects a wrong and worrying methodological perspective on the court’s role and the legal force of its judgments...The Constitutional Court of Malta chose to contradict the letter and the spirit of the Grand Chamber’s judgement, 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 Court’s prior case-law, which had specifically denied the ‘decisive’ role of the age or vulnerability factor.”

Madame Justice Padovani Grima also panned as “completely untenable” the prosecution's argument that the police had “absolute discretion” in deciding when to arraign a person in court.

“This argument does no honour to anyone,” said the judge. “The police's discretion can never be absolute, as it must be exercised within the boundaries of law and reasonableness,” she added, reminding the public prosecutor that the Constitution also protects the right to a fair hearing within a reasonable time.

A five-year wait for straightforward charges of cocaine possession was not reasonable, said the judge, further pointing out that in the year since the applicant had filed Constitutional proceedings, the criminal case against him had still not yet been decided.

“As long as the defendants are not trying to say that the Police have more power than the Constitution, the argument that the police have no obligation to ensure a person is arraigned within a reasonable time of their interrogation, and not leave them hanging for years...does not make sense.”

The court ordered the defendants to pay Said €2,500 in compensation for the breach of his fundamental human rights, a further €1,000 for the delay in pressing charges and ordered that the statement he released during interrogation be expunged from the acts of the criminal proceedings against him.