Issue link: https://maltatoday.uberflip.com/i/1481355
maltatoday | SUNDAY • 9 OCTOBER 2022 15 LAW CLASSIFIEDS ALTHOUGH the law allowing a lawyer to be present at an interro- gation was not in the statute books at the time when the interrogation took place, the Court ordered that the statement should not be made use of. This was held in Anna Gel- trude D'Amico -v- Kummissarju tal-Pulizija u l-Avukat ta' l-Istat decided on 29 September 2022 by Mr Justice Robert Mangion pre- siding over the First Hall of the Civil Court in its Constitutional Jurisdiction. The Applicant, Anna D'Amico, explained in her application that in November 2014, she was ac- cused of importation of cannabis. The day before she was arraigned in court, she gave a statement to the police. She was not assisted by a lawyer at the time of the in- terrogation. She claimed that this breached her fundamental human rights as protected in Articles 6 and 7 of the European Conven- tion and Article 39 of the Consti- tution. She further explained that she is a vulnerable and that when she was arrested, she was thrown in a cell without any food or drink. She was promised that she would be able to leave the police head- quarters if she told them that her brother imported the drugs. Due to her vulnerability, she told the police what they wanted to hear. She said that the police spoke to her in Italian, but the statement was in Maltese and she signed it. The defendant rebutted the claims in that such an action should take place at a later stage, since in the compilation of evi- dence it is not known what disad- vantages, the Applicant may suf- fer. The Authorities also claimed that Article 6 of the European Convention speaks of the right to a fair hearing and not the as- sistance of a lawyer at the time of interrogation. They claimed that the accused's statement cannot be singled out, but the whole process has to be examined to see whether there a fair trial. The Court examined the ev- idence. From the evidence the Applicant suffers from a tumour in her shoulder and also before coming to Malta, her partner of 37 years suddenly died. Her brother visited and worked in Malta and suggested to her to come to Malta to rest. He flew to Malta, and she arrived with the catamaran, since her condition of her shoulder did not allow her to fly. When she was arrested and interrogated, she was extremely vulnerable. She de- nied at first to the police that her brother gave her drugs to bring with her to Malta, but when she was informed by the police that she could be given a 15-year sen- tence, then she told them that she brought the cannabis to Malta, as- sisting her brother. Psychiatrist Dr David Cassar tes- tified and confirmed that she was deeply vulnerable at the time of the interrogation and was "unable to function mentally in an appro- priate emotionally and cognitively safe manner…" The police also testified and ex- plained that the Applicant spoke to a lawyer on the phone before interrogation and her rights were explained. The police did explain that if she admits to the charges, she would have her sentence re- duced. As to why the statement was in Maltese, they explained that there was an interpreter present. In her statement she ex- plained that she arrived in Malta with a suitcase and that she knew there were drugs in it. The Court dealt with the Courts pleas first of which is that the ac- tion was done untimely. The Ap- plicant held that the action would have been presented because the statement was presented in the compilation of evidence. The Court further held that the Courts have held that they do not investi- gate whether there is a breach of a right to a fair trial before the trail is concluded. The Constitution and the European Convention al- lows a person to file a breach of his or her human rights when these rights have been breached or else are going to be breached in Arrigo & Vella v Malta decided by Euro- pean court of Human Rights on 10 May 2005, held: "The Court recalls that the ques- tion whether or not court pro- ceedings satisfy the requirements of Art. 6 of the Convention can only be determined by examining the proceedings as a whole, i.e. once they have been concluded. However, it is not impossible that a particular procedural element could be so decisive that the fair- ness of the proceedings could be determined at an earlier stage……" The Court turned down this plea. As to the merits of the case, the Defendants held that the fact that there was no lawyer assisting the interrogatee means there is a breach of her human rights. In fact, the statement was confirmed on oath. The Court pointed out that in 2014 the right to have a lawyer during an interrogation was not found in the law. This took place in 2016 in amendments to the Criminal Code, more pre- cisely Article 355AVA. In 2014 a suspect had a right to consult a lawyer before interro- gation. Therefore, the statement the Applicant gave was not given illegally. The Court disagreed that the statement was given in breach of her fundamental human rights. In Stephen Pirotta v Avukat Generali the Constitutional Court held that in such circumstances the state- ment could not be used since the jurors could decide the case based on the contents of the statement. The European Court on Human Rights in the Salduz case of No- vember 2008 held that an interro- gation without the presence of a lawyer is a procedural defect. In the Criminal Court is taking this view as in Repubblika ta' Malta v Rosario Sultana decided on 23 September 2020. The fact that there is no lawyer present at an interrogation is not sufficient to show that there is no fair trial. However, at the same time the statement should not have any evidential value and its use may breach one's fundamental human rights. In this case, there was no difficul- ty for the Applicant to be assisted by a lawyer during the interroga- tion apart from the fact that the law did not provide for it at the time. The Court quoted exten- sively the judgment Morgan On- uorah -v- Avukat ta' l-Istat, which held that the statement should not be used, in order to avoid the fear that there be a breach of human rights. 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