Ceremony 3
Academic Oration
Tuesday 22 November 2011 at 1630hrs
JESUITS’ CHURCH – VALLETTA
Dr. Stefano Filletti
Department of Criminal Law
Faculty of Laws
The Lawyer’s Role In the Criminal Process
Honourable Minister, Chancellor, Rector, colleagues, distinguished guests, parents and
graduands: it is indeed a privilege and an honour to have been invited to address you on
the occasion of this special celebration.
Allow me first of all to take this opportunity to thank the outgoing Dean of the Faculty of
Laws Prof. Ian Refalo for his long years of dedicated service to the Faculty and the
University. It is with the same sense of candor that on behalf of the academic staff I bid a
warm welcome to Prof. Kevin Aquilina as the incoming Dean wishing him all the best for
the future.
Other developments that occurred in the course of recent months within the Department
of Criminal Law, which I am proud to head, are also noteworthy. On a sad note, we
witnessed the passing away of Prof. Guido De Marco, President Emeritus of the Republic
of Malta – a leading luminary in the field of criminal law. Chief Justice Emeritus
Vincent De Gaetano now sits on the European Court of Human Rights in Strasbourg;
whereas my predecessor, Dr Silvio Camilleri, ex-Attorney General, has been appointed
Chief Justice in his stead.
As you can surmise the Criminal law Department within the Law Faculty of our
University has maintained its long tradition of providing the State with the services of
some of the best legal minds on the Island.
Cicero gave us the maxim - Legum servi sumus ut liberi esse possimus – "We are
all servants of the laws in order that we may be free”. It is a maxim which encapsulates
the concept of the rule of law meaning that no person is above the law, that no one can be
punished by the state except for a breach of the law, and that no one can be convicted of
breaching the law except in the manner set forth by the law itself.
Beyond a shadow of doubt this maxim finds its best application in criminal law. Indeed
it is the duty of every legal practitioner, a judge, magistrate, lawyer (prosecution or
defence) to apply and interpret the law rigorously and fairly in the best interests of
justice.
The position of lawyers in the criminal law field is crucial in that they play a key-part in
protecting the rights of the individual whether a suspect or accused as the case may be,
without undermining the interests of society.
The reforms brought in the Criminal Code1 in 2002 afford new challenges to the legal
profession in general and the criminal lawyer in particular. Defending the rights of
persons suspect is no easy task.
Upon arrest certain rights commonly referred to as habeas corpus rights come into play.
Foremost among them one finds the right to be informed (in a language understood by
the person arrested) of the reasons of arrest, the right to be attended to medically if
required, the right not to be held incommunicado and more importantly the right to legal
advice.
Lawyers in other words do not only have a vital role to play during the trial itself2, within
the four walls of a courtroom but now they are expected to be involved at an earlier stage
of proceedings – the police interrogation. As held In Imbrioscia v. Switzerland3,
“Although the “primary purpose” of Article 6 in criminal proceedings is “to ensure a
fair trial by a ‘tribunal’”, it does not follow that it has no application to “pre-trial
proceedings”.
We have all heard of local and foreign instances of police impropriety ranging from
physical and emotional violence to promises of rewards or threats in eliciting
confessions. It was in this spirit that the reform in local law was enacted – to ensure a
fair trial from the first instance an individual is exposed to the arm of the law. There is,
after all, no sense in affording equality of arms and rules of fair trial, when a person
accused has already been prejudiced and forcibly or illegally constrained to confess to a
crime.
The amendment came in the light of judgments delivered by the European Court of
Human Rights, such as Salduz vs Turkey4 and Plonka vs Poland5 both confirming the fact
that presence of a lawyer at an early stage, such as the interrogation stage, was essential
to ensure that the person concerned is actually subjected to a fair trial. In the wake of
these judgments it was clearly established that every person suspect or arrested has a right
to seek legal advice at this early stage and furthermore that this legal advice, or rather
1
Cap.9 of the Laws of Malta.
Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A: “The Court further reiterates
that although not absolute, the right of everyone charged with a criminal offence to be effectively
defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial.
See also Demebukov v. Bulgaria no. 68020/01, § 50, 28 February 2008.
3
th
ECHR Application no. 13972/88, decided 24 November 1993.
4
ECHR Application no. 36391/02, decided 27 November 2008.
5
ECHR Application no. 20310/02, decided 31 March 2009.
2
presence of a legal practitioner during interrogation is a sine qua non requirement to
guarantee a fair trial6.
The Grand Chamber of The European Court of Human Rights in Salduz v. Turkey
[27.11.2008], held that
“Against this background, the Court finds that in order for the
right to a fair trial to remain sufficiently “practical and effective”
… Article 6 § 1 requires that, as a rule, access to a lawyer should
be provided as from the first interrogation of a suspect by the
police, unless it is demonstrated in the light of the particular
circumstances of each case that there are compelling reasons to
restrict this right. Even where compelling reasons may
exceptionally justify denial of access to a lawyer, such restriction whatever its justification - must not unduly prejudice the rights of
the accused under Article 6 ... The rights of the defence will in
principle be irretrievably prejudiced when incriminating statements
made during police interrogation without access to a lawyer are
used for a conviction.”7
This right was acknowledged as being an essential ingredient and was duly incorporated
in the Criminal Code in virtue of the 2002 amendments. It is indeed a pity that this right
only came into force in 2010. This delay caused a serious negative impact on the
criminal law system in Malta.
In this context reference must be made to two landmark judgments namely Il-Pulizija vs
Alvin Pritiviera8 and Il-Pulizija vs Mark Lombardi9. In both these cases the
Constitutional Court was requested to strike down statements released by persons
arrested and interrogated by the police since the said persons were not given the right to
seek legal advice before releasing their statements (which incidentally and in both cases
were self-incriminatory). In both cases the Constitutional Court found that the fact that
these persons arrested were not given their right to legal advice (and this even if at a time
6
Dayanan v. Turkey (13.10.2009) ECHR, it was held that the ‘restriction of the right of an
individual deprived of his liberty to have access to a lawyer was sufficient for it to be able to
conclude that there had been a violation of Article 6, even though the applicant had remained
silent while in police custody”. In Boz v. Turkey 9.02.2010 “the Court reiterated that systematic
restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6”.
7
Para 55.
8
Decided by the Constitutional Court 11/4/2011.
9
Decided by the Constitutional Court 12/4/2011.
when this right was not afforded according to Maltese law) constituted a serious breach to
the right to fair trial enshrined in our Constitution10:
‘The rule is that Article 6(1) includes the right to legal advice at the police
investigation stage, unless it can be shown that there are grave reasons why
this right ought to be restricted. The rule is right to legal advice and its
restriction the exception.
‘Even where there are reasons to restrict this right, whatever the reason,
these should never prejudice the rights of the person accused in terms of
Article 6(1).
‘This right of the person accused will be irremediably prejudiced when the
person accused releases statements during an interrogation without the right
to legal advice and these statements are subsequently used against him.
‘The reason the European Court insists on the right to legal advice at the
initial investigation stage is based on the principle that no person should
incriminate himself and also linked to the balance which needs to be met
between the rights of the person accused and the rights of prosecution’.
The Court of Magistrates in its criminal jurisdiction, taking note of this violation in turn
decreed that the statements released by the persons accused during interrogation were to
be excluded completely from trial.
These judgments are forceful judgments upholding the strong pro-human right sentiment
adopted and developed by our courts along the years.
As interesting and compelling these statements may be, an equally onerous duty becomes
incumbent on the legal practitioner. This duty is not only a logistical physical demand on
the practitioner who has to make himself more available to persons under arrest but more
importantly imposes a qualitative ethical requirement on the practitioner.
Every legal practitioner has the duty to assist his clients at an early stage such as the
interrogation and to do this in the best possible manner. Above all it is imperative to
afford the best legal counsel possible to allow the person arrested decide on how best to
react to an interrogation (which will no doubt bear a direct impact in his trial).
The matter is not so straightforward as it may first seem on account of the fact that the
right to legal advice comes at a price. The European Court of Human Rights in Saunders
v UK11 recalled that although not specifically mentioned in Art.6 of the Convention, the
10
11
The Constitution of Malta.
ECHR, 17/12/1996.
right to silence is a generally recognized international standard which lies at the heart of
the notion of fair procedure under Art. 6. Its rationale lies, inter alia, in the protection of
the accused against improper compulsion by the authorities, thereby contributing to the
avoidance of miscarriage of justice and to the fulfillment of the aims envisaged in Art. 6.
The right to remain silent on the part of the person accused has always been sacrosanct
under our law and is even enshrined in our Constitution. Indeed trials by jury were
declared null simply because reference was made by the presiding judge to the fact that
accused chose to remain silent in the face of serious and grave charges. Every person
accused has the right to remain silent and this silence cannot be understood in any way as
an implied admission of guilt. This is true during interrogation and at trial alike. Equally
where a person fails to answer as to whether he is pleading “guilty” or “not guilty” to the
charges in court, the Court has to assume that silence equates with a reply of “not guilty”.
Whereas this right to silence has remained in our criminal law system the 2002
amendments brought a variation to the original right. Worse still this variation or
amendment is intrinsically linked to the right to legal advice.
Our Criminal Code stipulates that every person has the right to seek legal advice or
counsel for one (1) hour prior to interrogation (and not during interrogation). In the event
that the suspect avails himself of this right, such a decision shall be noted in writing in a
register kept for this purpose.
What are the ensuing consequences?
The 2002 amendments to the Criminal Code introduce the notions of inferences from
silence. In other words a person accused cannot in trial reasonably rely on facts (such as
an alibi) which he has failed to mention during interrogation. If this actually occurs then
an inference can be drawn against the accused which will provide a circumstantial
element of guilt against him.
In simple terms, if a person suspect during interrogation remains silent, but then in trial
takes to the witness stand and refers to facts with a view of exculpating himself, that fact
alone will allow the judge or jury to draw an inference against the accused.
Such inference can only be drawn if the person accused chose to seek legal advice.
This point is highlighted because every legal practitioner has a serious and grave duty to
advise his client correctly according to the circumstances. A person suspect interrogated
by the police may lead to the release of surprising or unexpected statements which can
incriminate him. A person suspect refusing to be interrogated or rather who chooses to
remain silent is running the risk of having an inference drawn against him if later he/she
takes the witness stand. This state of affairs is further compounded given that the judge
and jury at a later stage are aware that the lawyer advised his client to remain silent fully
knowing of the risk of the inference. The question therefore inevitably will be asked:
why did the lawyer allow his client to run this risk and remain silent? What is the
accused afraid of? What is he or she hiding?
We all know that all that glitters is not gold. This cannot be any more true with respect to
the right to legal advice. What at first seems to be an amendment championing rights of
persons suspect has become a seriously onerous obligation for lawyers. The obligation
can be extended in the event that the right to legal advice be developed (as is already
being discussed) to a right to have a lawyer present during the course of the interrogation.
In that circumstance therefore the conduct of the lawyer throughout the interrogation
likewise will be of essence.
In conclusion it is essential that as servants of the law, every lawyer performs his or her
duties legally and ethically in full respect of fairness and justice. Above all the lawyer
must conduct himself in the best interests of his client and yet be loyal and true to the law
and criminal justice system. This duty is expected out of each and every lawyer each and
every time he or she is consulted by a client.
Practising law is a noble and prestigious profession. With a sound legal background and
the exercise of due diligence, it is a profession that may well blossom into a rewarding
and satisfying career. At the same time it is an equally demanding and onerous
profession which requires hard-work, competence, clarity of thought and tenacity,
accompanied with an all-round ethical behaviour in the service of justice.
Thank you.