Historic European Court of Human Rights decision opens floodgates against Malta

The European Court of Human Rights unanimously held that there had been a violation of Mario Borg's human rights when he was denied legal assistance and the right to a fair trial after his arrest in 2003

A decision handed down yesterday by the European Court of Fundamental Human Rights is causing a stir amongst the local legal community, after essentially declaring that the Maltese Constitutional Court had repeatedly breached the right to a fair hearing in cases where police had interrogated suspects without a lawyer being present.

In its decision, the European Court of Human Rights held: unanimously, 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, 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."

In his consenting opinion, European Court judge Pinto De Albuquerque did not pull his punches, accusing the Maltese Constitutional Court of breaching a constitutional instrument of European public order. It also undermined a principle established in landmark judgment Salduz v Turkey in which the ECHR had held that the applicant’s fair trial rights were prejudiced by restrictions on his access to a lawyer during police custody.

“In other words, the Government is claiming that Salduz did not posit a principle of law and therefore national courts may depart from it when the facts of a case are not exactly the same…This view not only downgrades the landmark Salduz judgment to “the rank of a strictly fact-sensitive understatement by the Grand Chamber, but worse still, reflects a wrong and worrying methodological perspective on the court’s role and the legal force of its judgments.”

“In spite of the crystal-clear course taken by the Court towards reinforcing the right to legal assistance...from the very beginning of the investigation…,” the strongly-worded judgment continues, ”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…”

Worse still, the criteria establishing who vulnerable persons were, had never been laid out, the court said. “On this fragile legal basis, the impact of the Grand Chamber case-law was, in practical terms, limited to ‘exceptional’ cases.”

The court also held that no violation of Article 6 § 1 in respect of an alleged lack of legal certainty concerning the constitutional proceedings had taken place.

The case dealt with a complaint by Borg, a convicted offender, of not having had any legal assistance during questioning in police custody.

In its decision on the matter, the European Court of Human Rights held that the right to legal assistance “must be the general rule and must be given from the initial stages of the investigation, except in exceptional circumstances,” stressing that failure to do so would result in the rights of the defendant being prejudiced.

The ECHR held that Borg had been denied the right to legal assistance at the pre-trial stage as a result of “a systemic restriction applicable to all accused persons.” This did not satisfy the requirement under the European Convention, that there be “compelling reasons” to restrict the right to assistance of a lawyer at the initial stages of police interrogation.

The court held that Malta was to pay Borg €2,500 by way of symbolic damages and €2,185 in respect of costs and expenses. Borg had been jailed for 21 years and fined €70,000 in 2008 when he had been found guilty of drug trafficking.

The ruling is expected to open the floodgates for requests of rescission of constitutional cases which had been decided in this manner.

Lawyers Franco Debono, Marion Camilleri, David Camilleri and Joe Gatt filed a judicial protest this morning, requesting the First Hall of the Civil court hold the Attorney General, and thus the Republic of Malta, liable for damages, after the ECHR upheld their arguments.

“The Government should legislate that where these statements have been used, they are not valid,” said Debono in comments to the Maltatoday.

The consequences could be dire indeed, said the lawyer, pointing to the repercussions of the 1963 case Gideon vs Wainwright before the US Supreme Court, which resulted in thousands of persons, convicted after being tried without the assistance of a lawyer, being released overnight.