Right to legal assistance: the second floodgates have opened
The floodgates were opened to a second round of a tide of Maltese nationals who had their rights breached because of the way in which their police statements and legal representation were given.
The first floodgates had been opened to cases before the 2010 law that introduced suspects’ right to legal assistance before they are questioned by the police, in the wake of a landmark ruling by the European Court of Human Rights.
At the time Malta’s Constitutional Court had for years been ignoring a raft of judgements by the ECHR that enshrined the right to legal assistance in all the countries under its remit. In fact, before the right to legal assistance was introduced, Malta was the black sheep of Europe in this respect – being the only European state to have not provided its citizens with this basic human right.
The situation was an ongoing travesty that was only corrected in 2010, but still the Maltese Constitutional Courts, in subsequent cases since then, had by and large refused to adhere to multiple Strasbourg rulings on this aspect of the fundamental human right to a fair trial.
That problem pertained to police statements taken from suspects before the law relating to the right to legal assistance before police interrogation was introduced in 2010.
Statements given to the police that featured in criminal cases pre-dating the introduction of the right were challenged successfully in the Constitutional Court; in which defendants requested that statements they gave to the police without prior legal advice be struck from court proceedings.
In its landmark ruling, the ECHR had harsh words for the Maltese Constitutional Court with respect to the fact that it has chosen to diverge from ECHR rulings, where it is common practice that such judgments command authority and respect among the countries under its remit.
In its ruing the ECHR said: “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 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…”
Two days later, the Maltese Constitutional Court followed in the ECHR’s footsteps, awarding another man damages for this same breach of his fundamental human rights.
But still, the right to legal assistance during police interrogation had not been enshrined.
But that was then, and this is now, and yesterday’s judgement opens the floodgates for claims of inadmissibility of all statements given under such circumstances between 2010 and 2016 as it was only after November 2016 that Malta became fully compliant with EU law by allowing legal assistance actually during, and nit just before, police interrogations.
There are a number of people who had their grievances dismissed, were possibly even convicted by the Maltese courts and there may be others still who never instituted proceedings but who may consider doing so in the wake of the ruling.
This is obviously a huge can of worms that stands to be opened, and the state potentially faces the prospect of hundreds of thousands, if not millions, in compensation payments.
Others can potentially seek retrials or to have their convictions overturned – if they choose to go down that route.
All this is unfortunately due to the state’s procrastination in granting suspects their due rights, both during and before police interrogation, which were for example, were granted to suspects in the United States some 50 years ago.
The question is, why has it taken us so long to bestow such basic rights to people under arrest?