An important judgement by the Grand Chamber of the European Court of Human Rights
Tonio Borg, when he was minister of what used to be called The Interior and is now called Home Affairs, did nothing about the rampant racism in Malta. One of Carmelo Mifsud Bonnici’s first acts, when he took over, has been the rolling out of an anti-racism bill.
Now he has to tackle – and immediately – another crucial area circumvented by his predecessor. He has to make sure that nobody is questioned while in police custody without a lawyer by his or her side. It is absolutely shocking that nothing about the system has changed since the days of Lorry Pullicino. You go in there and you are on your own. Anything can happen, and you don’t know what your rights are – and even if you do, it’s pointless insisting on them when it’s just you and the police who can keep you imprisoned for 48 hours, as I know through direct experience with the former police inspector who is now claiming that this government is a ‘rightist regime’ that ‘stole the election’.
Here’s some news that wasn’t reported in Malta’s mainstream or political media, so you’re reading it here first. A few days ago, the Grand Chamber of the European Court of Human Rights delivered an important judgement in the case Salduz v. Turkey (36391/02), finding that Turkey had violated Article 6 (the right to fair trial) because the applicant, Salduz, was not allowed legal assistance when he was detained in police custody.
Unless you are particularly slow, you will have grasped at once the implications of this judgement: that every trial that has taken place in Malta has been an unfair trial. Nobody has had legal assistance when detained in police custody. Even now, as you are reading this, there are people being questioned at the Floriana Police HQ without a lawyer at their side. Unless you have been in that situation yourself, as I have, you cannot understand just how vulnerable you are, though you can use your imagination.
The ECHR noted in this case instituted by a Turkish citizen against Turkey that “the restriction imposed on the right of access to a lawyer was “systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the state security courts”. These are courts which deal with highly sensitive matters affecting the security of the state.
This is not the first time the ECHR has delivered a similar judgement, but it has refined and extended the concept of the right to legal assistance while in police custody. It appears that we are no different to Turkey, which makes it appropriate that Midnight Express was filmed here. Unless Mifsud Bonnici cracks his whip, Turkey will get in line before us on this one.
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‘The ECHR noted in this case instituted by a Turkish citizen against Turkey that “the restriction imposed on the right of access to a lawyer was “systematic and applied to anyone held in police custody, regardless of his or her age, in connection with an offence falling under the jurisdiction of the state security courts”. These are courts which deal with highly sensitive matters affecting the security of the state.’
Does this mean that in the case of other offences, i.e. those not affecting the security of the state, the accused IS allowed access to a lawyer? If so, then Turkey is ahead of Malta already.
Malta desperately needs an organization like the American Civil Liberties Union in the United States.
What is really offensive about this is that when Labour were in power this situation was abused. Now that the Nationalists are in power, they do not take steps to defend our rights unless their hand is forced. Who knows, maybe they think that while they rule, it’s ok because the police won’t abuse our rights??
Guantanamo Bay detention centre immediately comes to mind. The detainees there have been kept for years, not hours or days, without charges and with no real proof of them ever committing a crime against the United States or anyone else, for that matter.Many have complained of routine torture and other degrading conditions in violation of human rights and the freedom of exercising one’s religion.
Nonetheless, it is no excuse for Malta to allow Police interrogation without the presence of a defence lawyer.
Minister Mifsud Bonnici should consider this latest verdict and act swiftly.
I can imagine that if one had accurate statistics regarding the interrogation of suspects without the presence of a lawyer, Malta would not come anywhere near the top offenders in this regard. It would be far behind Russia, China, N. Korea, various African States as well as South American countries such as Chile, Columbia and many others.
@ Marku : What did the American Civil Liberties Union do about the Patriot Act?
You will find that the police and dear Tonio Borg were moving in the opposite direction here. The police have been clamouring long and hard for the right not to allow lawyers in whilst they were interrogating a suspect not only at the police HQ, but whenever they want to interview him. They dont want any interference, and I daresay that there are many cases where “statements” have been extracted by “suggestions” to do this and do that, in the hope that a lighter sentence prevails. t has become de rigeur to put the suspect in a cell for the night in order to terrify him, and its been happeneing even in cases of suspected white collar crime.They even want to put into the Criminal Code that refusal to give or sign a statement is tamtamount to an admission of guilt.
The truth is that the police have no one to oversee them and Tonio and Karm after him persist in being wimps of the Commissioner rather than keeping a firm rein on police activities.If they are not necessarily searching and harsh on the police, ministers would have failed ion their duty towards the public.
Most policepersons are good, but there are some apples amongst them that could do with throwing away. The secret service should also be tasked with investigating the off duty activities of policemen, just in case.
Yes, Turkey is ahead of us. In Malta, unless people speak out, we will have our work cut out to allow lawyers in when the police interrogate a suspect. they will cry blue murder because it will cramp their style. Truth is, if they feel that way, then their investigative methods do not withsatnd the test of best practice comparisions. Policemen should never be afraid of lawyers, and should never be afraid of the truth. And they should never manufacture truth through real or implied pressures put on the suspect. A lawyer should be present at all times. The practice of confiscating mobile phones and leaving suspects incommunicado for two days should stop. At least, they can inform their families or lawyers where they are.
Daphne, this calls for a specifc lobby group to be set up. We need to entrench the suspect’s right to a lawyer at the time of arrest and at all times when he is interrogated. And we need to curtail a policeman’s right to frivolously holding a suspect in a cell overnight just because its time to sign off duty and he hasnt finished. Xbajt nisma stejjer tal-wahx fuq dawn il-kazi.
So in an island overrun with lawyers, with more being cloned each year by the UoM, has it never occurred to them that maybe, just maybe, this was dangerous?
Vote Tonio, Get Lorry
John Schembri: I couldn’t tell from your comment if you were genuinely interested in finding an answer to your question or whether you were just being sarcastic. Either way, you might find some interesting reading here:
http://action.aclu.org/reformthepatriotact/
@Mario Debono – Never a truer word was said. I am in total agreement with you and Daphne. Thank God for Daphne and her knack of expressing people’s hidden thoughts.
Why does Government never do anything unless ordered to by our beloved rulers in Brussels or Strasbourg? Whatever the case, reform of the drydocks, liberalisation of Enemalta, travel tax, car registration double tax whammy, illegal expropriation of land and most shameful of all the hijacking and stealing of the National Bank of Malta. Government hangs on to the bitter end enjoying its ill-gotten fruit until a loaded revolver is placed at its head and then it rushes through a last minute just in time job a la club med.
@ Marku : normally I don’t use sarcasm , especially with people whom I never exchanged opinions.
But I could not help commenting . The reality is that human rights are being eroded in the land of the ‘free”.
Daphne,
It appears, from the limited number of replies that you have received, that the lack of concern for this continuing gross miscarriage of justice on the island remains, despite your pleas for action.
As you know, I also was subjected to ‘incarceration without representation’ and lanquished in prison for almost three weeks (no bail allowed) before, with your assistance through your writings in the local press, I was eventually tried, aquitted and allowed to roam free once again in order to pursue my business interests.
My many overseas friends and business associates still shake their heads in bewilderment. That such a situation was allowed and has never been addressed is very bad for Malta’s democratic reputation. I suspect that only outside pressure, such as a ruling of the Grand Chamber, will correct these outrages.
John Schembri: you’re preaching to the converted as far as I’m concerned but your original comment suggested that you do not believe the ACLU has done anything to challenge the Patriot Act, which I don’t think is true.
@ Marku :probably we agree that this organisation did not get results regarding the Patriot Act.
More nearer to home , I am all out in favour that a suspect has a right to be assisted by an advocate during an interrogation , even if this means less ‘resolved’ cases by the police.May I add that the suspect has a right to have an unedited copy of a video of his interrogation.
I would rather have a guilty person escape a prison sentence than have an innocent person being coerced by some overzealous inspector to sign on the dotted line….. and end up in jail with a nervous breakdown.
Sometimes even advocates in the court room try to put words in your mouth which you did not utter two minutes before as a witness before the same court.