Some aspects dealing with the right to a fair trial in criminal cases - a brief overview (2)

Laws and rules regulate practically every aspect of our lives. Breach of these norms or nuisances from others may require settlement before a court of law, unless a friendly settlement is reached.

There is, in fact, a remote chance that a person may go through his whole life without ever stepping into a courtroom, whether as plaintiff or as defendant in non-criminal cases. This is probably the very reason why jokes on lawyers are commonplace and tickle most of our fancy: very often we have to deal with lawyers and the judicial system at one time or another in our lives.

Our interest, at times, in the disorganisation and 'immorality' of the entire judicial scenario should however go beyond mere civil and commercial concerns. There is a misconception that criminal trials are only for criminals, so that if one abides by the law, there is no chance that one will find oneself under questioning or in detention, whether it is pending proceedings or under conviction by a criminal court.

This is an erroneous belief, starting from the fact that even a simple confusion in tax matters or one's enemy wishing to do us harm may result in time spent behind bars. Starting from this premise, it is in everyone's interest to know that our criminal courts and the accessories that make it function (or malfunction) are serious about their obligations and duties, so that any suspension of our rights during criminal proceedings will only result when we truly deserve it in accordance with the law.

Moreover, we deserve to be sent to prison, for example, only when a fair and impartial trial has been concluded, which trial shall respect our presumption of innocence until the very end, when there may be no qualm whatsoever that our guilt has been proven beyond reasonable doubt.

Due to the vast nature of the subject, we shall in no way pretend to be exhaustive in highlighting the requirements for the protection of this right. We shall, however, attempt to underline some of the most important aspects of this right, which finds protection locally under Article 39 of the Constitution of Malta, Article 6 and 7 of the European Convention on Human Rights (ECHR) and the detailed Articles 14 and 15 of the International Covenant on Civil and Political Rights.

Over and above the requirements of a fair trial in the determination of one's civil rights and obligation, including those of a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, criminal proceedings, due to the possibility that the accused could face a prison term, require added protections under both international and national human rights law.

One must immediately highlight that our Constitution does not guarantee a public hearing for all criminal proceedings. This might jeopardise the legitimacy or the fairness of a criminal trial in that it inhibits public scrutiny and accountability of the proceedings.

Private hearings, in accordance with the European Court of Human Rights (ECtHR), should only take pace in exceptional circumstances, when publicity might be prejudicial to the private parties concerned (especially when they are juveniles), to justice in general, or when publicity might not be in the interests of public morals or national security.

The protection for a fair criminal trial starts to run when a person becomes the subject of a criminal charge. National law alone does not define a criminal charge. This definition is subject to international scrutiny. Thus, according to the ECtHR's jurisprudence, a criminal charge exists when one is charged with having committed a criminal offence.

One is 'charged' not only when there is an official notification by the competent authority, but also when there is the implication of such an allegation, and when the steps taken substantially affect the situation of the suspect. This is also the moment from which the determination of "a reasonable time" starts to run.

In Malta's case, if a preliminary investigation has been opened against a person, he/she shall be considered to have been criminally charged. Protection under the right to a fair criminal trial will not include extradition hearings, in most cases; neither is there protection for a person who is kept under supervision with a view to preventing the commission of a crime.

The cardinal rule under both international human rights law and our Constitution is that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law. Malta's Constitution provides an exception to this in that it allows, when this is provided by law, the imposition (burden) on any person charged of proving particular facts. Malta also entered a reservation to this effect on ratifying the ECHR.

It is interesting to note how tax law in Malta completely reverses the burden of proving certain facts in favour of the Commissioner of Inland Revenue, not to mention the VAT Department and the Customs Department.

It should be noted that tax cases may be of a criminal, or at least a quasi-criminal nature; penalty on conviction may result in imprisonment. While tolerated under international law, such a reversal of the burden of proof must be within reasonable limits, which take into account what is at stake and maintain the rights of the defence according to the ECtHR case of Salabiaku v France.

Furthermore, the right to be presumed innocent only applies to the establishment of the guilt or innocence of the accused and not to the kind or level of punishment.

Presumption of innocence does not extend to pre-trial investigations or inquiries, such as the carrying out of medical examinations, blood tests, breathalyser tests, etc. It shall, however, be the duty of the court during trial to ensure that such pre-trial preparations were carried out impartially and fairly so that any bias should be taken into account in the findings of guilt against the person concerned.

According to the ECtHR's judgment in Imbrioscia v Switzerland, steps taken at the pre-trial stage will only be relevant to the right to a fair trial if and insofar as the fairness of the trial is likely to be seriously prejudiced by the initial failures of the authorities to comply with the requirements of a fair trial.

Other pre-trial rights include the right (at the latest from the moment an indictment is issued against a person) to be informed promptly and in detail, in a language which may be understood by the person concerned, of the nature and cause of the accusations against him.

During trial, a suspect/accused has the added rights to be provided with an interpreter if he cannot understand or speak the language of the court. A suspect must always be given sufficient time and facilities to adequately prepare his/her defence.

The right to a trial within a reasonable time must not jeopardise this right. The suspect must be able to defend himself/herself in person, or through legal assistance of his/her choosing, or to be provided with free legal assistance when he/she cannot afford it himself.

Another basic right is for the accused to examine or have examined witnesses against him/her as well as obtaining the attendance and examination of witnesses on his/her behalf under the same conditions as those for witnesses brought against him/her, reflecting the 'equality of arms' principle.

One final right is that of ne bis in idem; no one shall be tried twice for the same offence. It is interesting to note that our Constitution, while recognising this protection, allows for its suspension vis-a-vis members of a disciplined force suspected of having committed a criminal offence notwithstanding any trial and conviction or acquittal of that person under the disciplinary law of that force.

The only protection here is that any court in trying such a member and convicting him/her, shall in sentencing him/her to any punishment, take into account any punishment awarded to him/her under that disciplinary law. One wonders how the second court may be impartial in such a case or how the presumption of innocence may be realistically secured!

Furthermore, neither shall a person be found guilty of an offence which was not an offence at the time when the act was committed. It will also be unlawful for a heavier penalty than that applicable at the time of the commission of an offence to be imposed. One other important and basic right is that of not incriminating oneself.

It is important to keep in mind that the rights enlisted in this article are mere minimum rights, so that any judicial system is free to safeguard the rights of suspects and accused over and above what is required until now under international human rights law.

(Concluded. Part 1 was published on July 7.)