Prison visitor's rights breached when she was not informed of her right to refuse a strip search

The human rights of a prison visitor were breached when she had not been informed of her right to refuse a strip search, a judge has ruled.

The ruling comes on the back of a saga that has been going on since 2004 when the woman, Marouska Azzopardi, then 24-years-old, had been arrested while attempting to visit her partner Jason Zammit in prison. Zammit and two other men had been charged separately in connection with drug smuggling and later acquitted.

Prison guards discovered a packet of heroin hidden in Azzopardi's private parts during a strip search.

In May 2015, the woman was jailed for seven months after she was found guilty by a court of magistrates. She was also ordered to pay a €600 fine.

An appeal was then filed, attacking the woman’s statement to the police and the legality of the strip search which had led to her arrest. In July 2020, the Court of Criminal Appeal had partially upheld the appeal, ordering the expunging of her statement, but dismissed the contestation about the search. That court had observed that the search order was valid as it had been issued on reasonable suspicion that she was smuggling drugs - something which turned out to be true - and because she had not refused the order.

Her lawyers subsequently filed constitutional proceedings, arguing that the woman’s rights had been breached by the fact that the prison authorities had not informed her of her right to refuse the strip search, in which case she would simply have been turned away.

In her decision on the matter, handed down last Thursday, Madam Justice Joanne Vella Cuschieri presiding the First Hall of the Civil Court in its constitutional jurisdiction, declared that Azzopardi’s right not to incriminate herself had been breached.

“Evidently, in the moment that the applicant was informed that a search would be carried out on her, she was placed in a position where she could incriminate herself and had not been informed of any other alternative, and that is why this breached her right not to incriminate herself.”

With regards to providing a remedy, the court said the most effective remedy for the safeguarding of her fundamental rights in the circumstances, was to expungefrom the acts of the criminal proceedings all the evidence regarding the strip search carried out on Azzopardi, together with everything else which was later found as a consequence of it.

The judge stressed that this must take place before the pending appeal against her conviction is decided.

Lawyers Franco Debono and Francesca Zarb were legal counsel to Azzopardi.