Courts still ‘ignoring’ ECHR rulings on right to lawyer before interrogation

Suspects being denied fundamental human right despite Strasburg case law

Despite a raft of rulings from the European Court of Human Rights, the Maltese courts are continuing to virtually ignore the Strasburg rulings on suspects’ right to consult with a lawyer before they are interrogated by the police.

Criminal law experts talking to this newspaper contend that, as matters stand, with the Maltese courts by and large not adhering to multiple Strasburg rulings on this aspect of the fundamental human right to a fair trial, matters are confused with criminal defence lawyers not knowing whether the courts will abide by the ECHR’s rulings or whether they will continue to apply their own criteria to cases.

The problem at hand is with police statements taken from suspects before the law relating to the right to legal assistance before police interrogation was introduced in 2010. Before then, Malta was the only country in

Europe that denied suspects under arrest the right to a lawyer before interrogation. Statements given to the police that now feature in criminal cases pre-dating the introduction of the right are now being challenged in the Constitutional Court, where defendants are requesting that statements given to the police without prior legal advice be struck from the proceedings.

In such cases, the Constitutional Court is, according to criminal defence lawyers speaking with this newspaper, virtually ignoring the Strasburg legal precedents and is instead applying its own criteria in terms of eligibility for the right to legal assistance before police interrogation.

That criterion centres around the supposed vulnerability of a suspect, but experts point out that such vulnerability is decided arbitrarily and are questioning how that vulnerability is defined. They also point out that, as far as the ECHR rulings are concerned, vulnerability does not even factor in the equation, as all and sundry are entitled to legal assistance during interrogation since anyone arrested is, in effect, placed in a vulnerable position.

Instead, the Maltese courts are quoting their own rulings in their judgements and are almost completely ignoring the ECHR jurisprudence on the right to a lawyer before police interrogation – as first established in the 2009 ECHR case of Salduz vs Turkey in 2009.

Since the Salduz case, there have been 10 similar ECHR rulings establishing the same point, including Bos vs Turkey, Plonka vs Poland, Panovits vs Cyprus, Bruscoe vs France, Demirkaya vs Turkey, Dayanan vs Turkey and Pishkalnikov vs Russia among others.

After an initial ruling in the Maltese courts in the case of Alvin Privitera and a minor who cannot be named, where it was declared that the denial of legal representation before police interrogation constituted a breach of human rights – in fact both have since been acquitted – the Constitutional Court has seemingly departed from the ECHR rulings as far as a case against Charles Steven Muscat was concerned and in a number of other Constitutional decisions that have been followed accordingly by the criminal courts – completely ignoring the ECHR jurisprudence.

In some cases, legal experts point out, even though defence lawyers have highlighted ECHR jurisprudence in their applications and submissions, strangely enough no reference is made to such ECHR case law in the Maltese courts’ final decisions.

This in itself is giving rise to legal uncertainty and could lead to further negative decisions against Malta by the ECHR, since a number of Maltese judgments that the courts are quoting are themselves pending before the ECHR itself in cases disputing the Constitutional Court’s rulings.

In the meantime, the European Commission has issued a detailed Directive on right of legal assistance for arrested persons, including the rule of disclosure which has already begun to be implemented by the current administration. The matter was also the subject of a parliamentary private members’ motion in the last legislature.

In its ruling in the Salduz case, the ECHR unanimously ruled that the benefit of legal assistance during the initial stages of police interrogation is required as a rule. That rule, the ECHR found, could be subject to restrictions but only with well-founded cause.

The ECHR ruled in such a way even though it found that there had been no violation of Salduz’s rights since he had been represented during the trial and the subsequent appeal by a lawyer, and that the applicant’s statement to the police was not the sole basis for his conviction.

This ruling has been reinforced in subsequent cases, such as in the 2009 case of Dayanan vs Turkey, in which the ECHR found that: “The principle of fair trial requires that a suspect be afforded the vast range of interventions that are inherent to legal advice. In this respect, the discussion of the case, organisation of the defence, search for favourable evidence, preparation for interrogations, support of the suspect in distress and control of the conditions of detention are essential elements of the defence which the lawyer must be free to perform.

“In the instant case it is not disputed that the applicant was not assisted by a lawyer when he was in custody, as such assistance was not allowed by the law in force at the relevant time. In itself, such a systematic restriction based on relevant statutory provisions warrants the conclusion that the requirements of Article 6 have not been met, irrespective of the fact that the applicant remained silent throughout his custody.”

In Demirkaya vs Turkey (2009), the ECHR ruled: “[The applicant] did not have access to a lawyer during his interrogation by the police and the public prosecutor. …The Court takes note of the fact that the applicant had legal representation during his questioning by the investigating judge. However, in the present case the applicant was undoubtedly affected by the absence of a lawyer when his statement had been taken by the police as, although the applicant repeatedly denied his police statement, the State Security Court used this statement as the main evidence.”

Moreover, in 2010 in the case of Pavlenko vs Russia the ECHR found: “Thus, even though at the trial the applicant had an opportunity to challenge the evidence against him in adversarial proceedings with the benefit of legal advice, the Court reiterates its foregoing findings concerning the legal assistance in the pretrial proceedings, and concludes that the shortcomings in respect of the legal assistance at that stage seriously undermine the position of the defence at the trial.”

As can be seen clearly from the ECHR case law, the right to legal counsel before police interrogation is absolute and ECHR case law makes no reference to criteria of vulnerability ort any similar criteria: denial of this fundamental human right means a breach of that right.

What remains to be ascertained why the Maltese courts are disregarding the ECHR rulings when such rulings are, generally speaking, respected by all contracting parties to the Council of Europe.