Le­gal as­sis­tance bill: Crim­i­nal pro­ceed­ings ex­pected to be dealt with more quickly

Malta Independent - - NEWS - He­lena Grech

The launch of a bill aimed at strength­en­ing pro­ce­dural rights by grant­ing sus­pects the right to a lawyer through­out po­lice in­ter­ro­ga­tions will speed up crim­i­nal pro­ceed­ings, Law Com­mis­sioner and crim­i­nal lawyer Franco De­bono be­lieves.

The launch of the Bill, en­ti­tled An Act to pro­vide for le­gal as­sis­tance dur­ing de­ten­tion and other rights for ar­rested per­sons, was an­nounced by Jus­tice Min­is­ter Owen Bon­nici on Wed­nes­day.

It is the trans­po­si­tion of a Euro­pean di­rec­tive on hav­ing ac­cess to a lawyer dur­ing crim­i­nal pro­ce­dures and dur­ing ar­rest war­rant pro­ce­dures. The Bill strength­ens so­cial jus­tice, and is ex­pected to be one of the first bills dis­cussed in Par­lia­ment once the au­tumn ses­sion com­mences.

Speak­ing yes­ter­day with The Malta In­de­pen­dent on Sun­day, Dr De­bono spoke of the role of the lawyer once the new bill comes into ef­fect:

“This con­sti­tutes a rad­i­cal change, es­pe­cially for lawyers, who will have to spend more time at po­lice head­quar­ters and po­lice sta­tions. More im­por­tantly, it will help elim­i­nate al­le­ga­tions against po­lice of­fi­cers.

“Cases will be de­cided in a much shorter time since lawyers wouldn’t need to wait for court pro­ceed­ings to know the es­sen­tials of the case. They would have par­tic­i­pated fully at the in­ves­ti­ga­tion stage — un­til just six years ago, the lawyers were com­pletely ex­cluded from this process.”

Dr De­bono said that this right was in­tro­duced in the United States of Amer­ica (USA) in 1966, so this year is its 50th an­niver­sary.

Com­par­ing this leg­is­la­tion with the rest of the Western world, he said: “This is the fi­nal chap­ter of a long story which brings us in line not just with EU di­rec­tives and Euro­pean Court of Hu­man Rights (ECtHR) judg­ments, but also with the rest of the Western world.

“Up un­til 10 Fe­bru­ary 2010, Malta was the only coun­try in Europe not to al­low any kind of le­gal as­sis­tance to ar­rested per­sons, since a law unan­i­mously ap­proved by Par­lia­ment in 2002 al­low­ing sus­pects to con­sult a lawyer for an hour prior to in­ter­ro­ga­tion was never put into force.

“The law only came into force a few days af­ter I ab­stained from a mi­nor Par­lia­men­tary vote as a sign of protest over this is­sue.

“On 8 Novem­ber 2011 I filed a pri­vate mem­ber’s mo­tion out­lin­ing a holis­tic jus­tice re­form in­clud­ing the right to le­gal as­sis­tance dur­ing in­ter­ro­ga­tion and the in­tro­duc­tion of the rule of dis­clo­sure since the EU was con­cur­rently pre­par­ing a di­rec­tive in that sense.”

Turn­ing to how vic­tims of crimes may be af­fected, he said: “Vic­tims’ rights have been strength­ened by the Repar­a­tive Jus­tice Act, which even con­tem­plates ac­cused-vic­tim me­di­a­tion, and other re­cent amend­ments. Vic­tims have es­pe­cially been as­sisted by a re­cent large-scale in­vest­ment in the Foren­sic Lab­o­ra­tory and in the Po­lice Force in gen­eral.”

Asked about peo­ple’s ex­pe­ri­ence when ar­gu­ing that their rights have been breached by not be­ing al­lowed to have lawyers present through­out in­ter­ro­ga­tions, Dr De­bono said:

“The flood­gates were opened af­ter I filed the first con­sti­tu­tional re­fer­ral in the Alvin Priv­it­era case in 2010, where for the first time in the Mal­tese courts’ his­tory, I had asked to de­clare a state­ment ob­tained with­out le­gal as­sis­tance in­ad­mis­si­ble.

“Since then, hun­dreds if not thou­sands of state­ments have been dis­carded and some cases, in­clud­ing tri­als by jury, are pend­ing due to the same rea­sons. A num­ber of ac­cused have also been ac­quit­ted on the same grounds, and a num­ber of re­quests for the re-open­ing of de­cided cases are pend­ing be­fore the courts.”

Turn­ing to whether an in­crease of peo­ple claim­ing their rights were breached due to lack of ac­cess to a lawyer through­out in­ter­ro­ga­tions is to be ex­pected, he said:

“On 9 April 2015, the Euro­pean Court of Hu­man Rights gave a judg­ment in AT v Lux­em­bourg, which could be in­ter­preted to mean that un­less a lawyer had been present dur­ing in­ter­ro­ga­tions, the state­ment could some­how be vi­ti­ated even though there was le­gal as­sis­tance prior to the in­ter­ro­ga­tion. In this case, new flood­gates would be opened.

“The judg­ment, which will be­come fi­nal un­less re­ferred to the Grand Cham­ber, speaks of find­ing a vi­o­la­tion of Ar­ti­cle 6 of the Euro­pean Con­ven­tion on Hu­man Rights (ECHR) and de­vel­ops the prin­ci­ples es­tab­lished in Sal­duz v Turkey.”

Franco De­bono

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