At the end of April 2011 the Constitutional Court of Malta handed down three landmark decisions holding that suspects have a right to access a lawyer during police interrogation. The lawyers in those cases successfully cited Salduz v. Turkey and convinced the Constitutional Court to say that the defendants’ rights were breached when their lawyers were not present during police interrogations.
These decisions are part of a long series of efforts that have been emerging in Malta to secure early access to a lawyer for police detainees. In 2002, article 355 AT was introduced in the Criminal Code, giving a detained person the right to consult in private with a lawyer, as soon as practicable, by telephone or in person for a period not exceeding one hour.
However, the community had to wait eight years for this provision to have any practical effect. In May 2008, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Malta and found that arrested persons in Malta were not given the right to access legal representation for the first 48 hours of detention. The CPT called upon the Maltese Government to bring article 355 AT into force without any further delay. On the 10th of February 2010 the Government, by Legal Notice 35 of 2010, finally did so.
Even with this provision in force there are still doubts as to Malta’s compliance with international standards, as they are reflected in the jurisprudence of the European Court of Human Rights. Particularly problematic could be the fact that article 355 AT provides for the possibility of delaying access to a lawyer for up to 36 hours and interrogating the suspect during this time. There are limitations as to when this delay can be ordered and by whom but the limitations are drafted in very broad terms leaving room for abuse.
Also, there are still a number of question marks over how the new right is going to be implemented in practice. Will there be a police station legal advice scheme? Will legal assistance be available for free for those people who cannot afford it?
The Justice Initiative will be monitoring how these reforms develop in the future.
The issue of early access to counsel for criminal suspects has gained enormous momentum across Europe in 2011. To keep you abreast of these exciting developments, the Justice Initiative is presenting short “country snapshots”, showing how European countries are changing their systems and giving people who are suspected or accused with crimes the right to speak to a lawyer from the outset of police custody, both before and during the first questioning by police.