The floodgates have well and truly been opened to a tide of Maltese nationals who had their fundamental human rights breached 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 earlier this week.

For years Malta’s Constitutional Court has been ignoring a raft of judgements by the ECHR that have 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 Strasburg rulings on this aspect of the fundamental human right to a fair trial.

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. 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; there are several cases in which defendants are requesting that statements they gave to the police without prior legal advice be struck from court proceedings.

In such cases, the Constitutional Court has virtually ignored the Strasburg legal precedents and has instead applied its own criteria in terms of eligibility for the right to legal assistance before police interrogation.

The criterion used was the supposed vulnerability of a suspect, but many lawyers have been questioning not only the fact that such vulnerability is being decided arbitrarily without a proper definition but also that, as far as the ECHR rulings are concerned, vulnerability does not even factor in the equation – everyone is entitled to legal assistance during interrogation since anyone under arrest is naturally in a vulnerable position.

Instead, the Maltese courts have been in the habit of quoting their own rulings in their judgements and have been almost completely ignoring the ECHR jurisprudence on the matter – as had first been established in the 2009 ECHR case of Salduz vs Turkey. 

Since the Salduz case, there have been several similar ECHR rulings establishing the same point. There have been the exceptions in the Maltese courts, but, by and large, the Strasburg rulings have been placed by the wayside, until this week when the ECHR ordered Malta to pay damages to a Maltese citizen because he had not been allowed access to a lawyer before being questioned by the police.

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. In its decision this week, the Constitutional Court held that the right to legal assistance during interrogation was one of the basic guarantees of a fair hearing, noting that the Attorney General’s argument that there had been no right to legal assistance was “untenable”.

The situation, as matters stand, is that there are a number of pending cases before the Maltese Constitutional Court as well as the ECHR, and a number of criminal proceedings are stalled as they await the determination of constitutional grievances regarding this very point.

Furthermore, there are a number of people who had their grievance dismissed and were possibly even convicted by the Maltese courts because of this departure from ECHR rulings – people who may now consider fighting their cause after this week’s ECHR ruling. There may be others still who never instituted proceedings but would now seek to do 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.

However, one could also ask, if after being denied their fundamental human right by the state, should an individual have to undergo the ordeal of further lengthy proceedings to get a declaration that their rights have been breached, or should the state remedy the situation by somehow legislating on the matter before the tide begins rushing through the floodgates?

There is certainly an interesting discussion to be had along such lines, and the discussion should be held very soon.