€3,500 award for human rights breach reduced to €800 on appeal

A man who was awarded €3,500 in compensation for a breach of a fair hearing in January has seen this amount shrink to €800 after the Constitutional Court in its superior jurisdiction partially upheld an appeal by the Attorney General.

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.

Last January, Said had been awarded €3,500 in compensation by the First Hall of the Civil Court for the breach of his right to a fair trial. The Attorney General filed an appeal, however, arguing, amongst other things, that the statement had been taken before criminal proceedings had been filed, therefore Said was not accused at the time, arguing that his right to legal assistance did not apply. Said was only formally charged in 2013 – five years after his arrest – which the prosecutor argued was “an administrative delay.”

In a decision reached on Friday, the Constitutional Court in its superior jurisdiction reformed judge Padovani Grima's original judgement, replacing the parts that found the man's right to a fair hearing had been breached by his conviction on the strength of a statement he had released without legal assistance, saying instead that right would have probably been breached, had it been used in the separate criminal proceedings currently underway against him.

Chief of Justice Silvio Camilleri, judge Giannino Caruana Demajo and judge Noel Cuschieri, presiding the Constitutional Court in its superior jurisdiction, held that it was not the absence of a lawyer during police questioning that is a breach of the accused's fundamental human rights, but the use of that statement in criminal proceedings. As this use had not actually taken place yet, the court felt that giving €2,500 in compensation to the accused for this was not justified and revoked the award, while confirming the previous court's order to remove the statement from the case file.

The court noted that in the five years after the accused had told his interrogators that he had abused drugs, he could reasonably expect criminal proceedings to be filed against him. While the court decried the fact that Said had been left in a state of uncertainty for five years while the police investigated the case, agreeing that his right to a decision within a reasonable time frame had been breached, this was not proven to be a result of delays in the proceedings. It therefore also reduced the €1,000 compensation awarded for this particular breach to €800.

Lawyers Franco Debono, Amadeus Cachia and Angie Muscat represented Said in the proceedings.