I would like to help today and donate

Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
CLOSE
NEWS

Closing the circle: Maltese jurisprudence on the right to a lawyer in pre-trial proceedings

editor - June 8, 2017 - access to a lawyer

This guest post was written by Ann Spiteri, lawyer in Malta and Member of the Legal Experts Advisory Panel. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.

On the 10th of May 2017, the First Hall of the Civil Court in its Constitutional Jurisdiction finally closed the circle on the guarantee of the right to a lawyer in pre-trial proceedings. The jurisprudence of the Maltese courts to that date had been to the effect that there is no need for a lawyer to be present when a suspect is testifying before the inquiring magistrate, because the presence of a member of the judiciary was enough to protect and guarantee fair trial rights. This was especially problematic at the time when the law imposed a systematic restriction on the right to a lawyer before police interrogation: indeed, when testifying before the inquiring magistrate, the suspect is usually asked to confirm, by means of extremely direct questions, the contents of the statements he would have released earlier to the police without the chance to consult with a lawyer. Even worse, a suspect testifying before an inquiring magistrate does so under oath, meaning that this testimony, given without prior consultation with a lawyer, has a higher probative value and could also lead to charges of perjury if the suspect is caught in a lie.

Malta_flag_largeIn its judgement in the case Il-Pulizija vs Josianne Azzopardi, the court concluded that if either the statement Azzopardi gave to the police, or the testimony she gave in front of the inquiring magistrate had to be used in the criminal proceedings against her, she would suffer a violation of her right to a fair trial. The judgment cited extensively from both Maltese and European Court of Human Rights (ECtHR) jurisprudence on the right to a lawyer in pre-trial proceedings. Interestingly, the court did not give any further reason for making the same finding with regards to the testimony given by Azzopardi before the inquiring magistrate, suggesting that the fact that the testimony was given before a member of the judiciary does not in any way shield it from the applicability of the jurisprudence developed from Salduz onwards.

There is general consensus that an individual interrogated by the police finds himself in a very vulnerable position. It should go without saying that this holds true even more when that same individual is being interrogated in front of a magistrate, with his testimony being given under oath, while his access to a lawyer is still being restricted. Hopefully this judgement paves the way for the courts to interpret the recent amendments on the right to a lawyer as applying also during the inquiry, so that a suspect testifying before the inquiring magistrate will be guaranteed the right to have a lawyer present during these proceedings.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. FB iconClick to share this story on Facebook

RELATED PAGES

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

Keep up to date

Receive updates on our work and news about Fair Trials globally

Activities in the following sections on this website are supported by the Justice Programme of the European Union: Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides and Latest News. More information about our financial supporters is available here.