Maltese Law which precluded legal assistance during police interrogation deemed a breach of human right to fair hearing

Brian Vella was arrested under suspicion of his involvement in crimes relating to drug trafficking

This was decided by the Civil Court First Hall in its Consitutional Jurisdiction in a judgement of the 14th February 2018 in the names of Brian Vella v. Avukat Ġenerali. On the 31st October 2004, Brian Vella was arrested under suspicion of his involvement in crimes relating to drug trafficking.

On the same day he released a statement to the police where he had made a number of self-incriminating statements. Brian Vella declared that when he released the said statement, he was not advised that whatever he said could eventually be used as evidence against him before the Court of Magistrates and he did not have the right to have a lawyer present during his interrogation since at the time this was precluded by law.

During the criminal proceedings, the only evidence produced by the prosecution were the report of the Technical Expert, the evidence of the police officers who had arrested Brian Vella and the incriminating statement that the plaintiff had released. Eventually due to the fact that at the time, the plaintiff could not attack the validity of his statement, he admitted to the charges brought against him and he was sentenced to seven months imprisonment, €600 fine and was put on a Probation Order for three years.

In view of the above, Brian Vella filed this constitutional case where he requested the Court to decide that the statement which he gave to the police on the 31st October 2004 and which was subsequently produced before the Court of Magistrates breached his fundamental human right of fair hearing as contemplated in Article 6  of the European Convention on Human Rights and Article 39 of the Constitution of Malta. He also requested the Court to declare that the judgement of the Court of Magistrates in its Criminal Judicature Jurisdiction was therefore null and void since his admission was only a result of his previous statement given to the police.

The Attorney General in his reply submitted that the fact that at the time of his arrest, the law did not allow plaintiff to have a lawyer present during his interrogation did not necessarily impinge on his human right of fair hearing. Moreover when it was submitted our Courts had not established any principle that failure to have legal assistance granted to the accused during a police interrogation (since this was not allowed by the law of the time) automatically resulted in a breach of the right of fair hearing.

Honourable Judge Dr Mark Chetcuti who presided over the case, when making his considerations referred to the judgement of the European Court of Human Rights in the names of Borg v Malta (ECHR 37537/13) decided on the the 12th January 2016 where it had been held that “in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.

Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. 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 (see Salduz, cited above, § 55).

Denying the applicant access to a lawyer because this was provided for on a systematic basis by the relevant legal provisions already falls short of the requirements of Article 6 (ibid., § 56)”.

Honourable Judge Dr Chetcuti held that at the time of the interrogation in question, Maltese law had a “systematic restriction of access to a lawyer pursuant to the relevant legal provisions” (Boz vs Turkey, 09/02/2010 and Dayanan v Turkey, 13/10/2009) and therefore this should formally result in a breach of Article 6 of the ECHR since at the time the right for legal assistance was non-existent.

With regards to Article 39 of the Constitution of Malta, the Court held that when examining this provision what is relevant is not the fact that the statement was taken by the police, but whether the said statement had any weight on the decision of  the Court of Magistrates during the criminal proceedings. In this respect, the Court held that the Court of Magistrates had found the plaintiff guilty of the charges brought against him in view of his admission and as a result of his statement. The plaintiff had registered his admission in open Court and after having consulted with his lawyer and the Court of Magistrates had not gone into the merits of the case given that the plaintiff had admitted to the charges and therefore the statement did not play a role in his sentencing.

In view of the above, whilst deciding that the statement given to the Police by the plaintiff during his interrogation breached Article 6 of the ECHR, the said statement did not breach article 39 of the Constitution of Malta and therefore the judgement of the Court of Magistrates was not declared null and no compensation was granted to the plaintiff.


Dr Catherine Mifsud


Mifsud & Mifsud Advocates

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