The beginning of a new year is always an appropriate time to take stock. When Malta was still not a member of the European Union our country's standards matched our expectations as citizens of a small country. Now that Malta is in the EU our expectations should be in line with our newly acquired status as European citizens. We should enjoy the same rights as our counterparts in other EU countries.

The right to legal assistance is an issue that fascinates every law student on his first encounter with this topic in Criminal Procedure and Human Rights law. All students are intrigued when the lecturer touches on the subject of the rights of an arrested person. In reality, however, this topic is of immense interest to every citizen. Yet few are conscious of the legal implications of what is going on in the judicial arena in Malta and in Strasbourg.

As a human rights lawyer I have been closely monitoring developments in this area both locally and internationally.

The Government Gazzette of April 9, 2002 carried a supplement containing Act III of 2002 - an Act to amend the Criminal Code. Section 355 AT referred to the "right to legal advice". The law allowed a detained person, for the first time in Maltese legal history, the right "to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour".

It is common knowledge that the Police Force resisted the introduction of the right to legal assistance, so much so that this part of the Act has not come into force at all. For some time I felt that such a radical change requires a time of preparation for our Police Force and that this was the reason for the delay in complying with international standards. This feeling has worn away completely and I now firmly believe that the willingness to put this part of the law into effect is entirely lacking. A law that has been on the statute book since 2002 and has not yet been activated in 2005 should make us all blush.

This fact is worrying. Not all persons who are questioned or interrogated by the police are guilty of a crime. Those who are innocent may include any law-abiding citizen. The right to legal assistance is a safeguard against wrongful conviction.

The rationale behind the right to legal assistance is very clear. The suspect or person being interrogated who is assisted by a lawyer is in a far better position as regards enforcement of all his rights in three significant ways: (1) because his chances of being informed of those rights are greater than in the case of unassisted persons; (2) because a lawyer will undoubtedly assist him in having his rights respected; (3) because a lawyer will offer guidance to him regarding the important decision or dilemma of whether he should provide an explanation to the police or exercise the right to silence granted to him by the Constitution.

Turkey, a country that still has to start membership negotiations with the EU and which had found itself on the slow lane to Brussels on account of its human rights record, allows detained persons the right to legal assistance subject to several restrictions.

The European Convention on Human Rights was incorporated in our domestic legislation in 1987. The text of the Convention is encapsulated in the First Schedule of Chapter 319 of the Laws of Malta. The right to a fair trial is guaranteed in Article 6 of the Convention. Article 6(3)(c) of the Convention provides for a right to legal assistance.

To my mind, this means that Article 6 may be breached where the suspect does not receive legal advice. Nevertheless, this is not the opinion of the Constitutional Court of Malta to date, although I believe that it will soon have to change tack and decide that a detained person is entitled to legal advice before and during interrogation. Let me explain why.

Article 6(3)(c) provides that anyone charged with a criminal offence has the right to defend himself through a lawyer. Access to legal advice in a pre-arraignment setting is not expressly provided for in Article 6, as opposed to such access after arraignment before the Court of Magistrates.

However, a measure of protection for such access to legal assistance during questioning can be read into subsections (1) and (3)(c) of Article 6.

In John Murray v. United Kingdom (1996) the European Court found that Article 6 had been breached by the denial of access to a lawyer for 48 hours, since such access was essential where there was a possibility that adverse inferences would be drawn from silence. It found that Article 6 would normally require that the accused should be allowed to benefit from the assistance of a lawyer in the initial stages of police interrogation, although that right might be subject to restrictions for good cause.

This judgment given by the European Court of Human Rights in 1996 contained a very clear message, one that was immediately understood and taken up by several European countries. Malta did not react. Practically all other European countries introduced the right to legal assistance during questioning in different degrees and subject to varying arrangements.

Four years later, on June 6, 2000, the European Court of Human Rights gave two other important judgments, which reached the same conclusion, that is, that there was a violation of Article 6. However, they differed from each other in one important aspect: one was based on the importance of allowing the detained person to consult a lawyer to counterbalance the possibility of adverse inferences during trial (Averill v. United Kingdom); the other was based on the importance of allowing the suspect to consult a lawyer as a matter of procedural fairness on account of the coercive environment to which he was being subjected (Magee v. United Kingdom).

In Averill v. United Kingdom the European Court found a breach of Article 6 on the basis, already noted in Murray v. United Kingdom, that, bearing in mind the likelihood of drawing adverse inferences from silence, it was of "paramount importance for the rights of the defence that an accused has access to a lawyer at the initial stages of police interrogation." (para. 59). What this really means is that whenever adverse inferences may be drawn from silence, a right of access to legal advice is required under Article 6 of the European Convention.

In Magee v. United Kingdom, however, the finding of a violation was not based on the possibility of adverse inferences but on other factors. The applicant was not subjected to ill-treatment during his interrogation. This notwithstanding, the applicant was deprived of legal assistance for over 48 hours and the incriminating statements which he made at the end of the first 24 hours became the central platform of the prosecution's case and the basis for his conviction.

The European Court ruled that "As a matter of procedural fairness the applicant should have been given access to a solicitor at the initial stages of his interrogation as a counterweight to the intimidating atmosphere specifically devised to sap his will and make him confide in his interrogators."

What is vital for purposes of this article is that the Court clearly stated that in its opinion, "to deny access to a lawyer for such a long period and in a situation where the rights of the defence were irretrievably prejudiced is whatever the justification for such denial incompatible with the rights of the accused under Article 6." Adverse inferences did not come into play at all. The decision was based solely on the denial of access to legal advice.

These Strasbourg decisions reflect acceptance of the right to legal assistance during custodial interrogation as a fundamental right. It was purely incidental that these cases related to the regime obtaining in Northern Ireland. The principle enunciated by the European Court is not to be interpreted as one that is based on the premise that both applicants were detained and interrogated in Northern Ireland. There is no evidence to show that the Court would have reached a different conclusion had these cases concerned any other country.

The issue, therefore, is not whether this right exists but how it may best be enforced. The right to legal representation arises immediately on arrest. Most countries in Europe recognise this principle and implement it. The right conferred by Article 6(3)(c) is intended primarily to ensure a fair trial. In some countries, legal advice on arrest is given on a pro bono basis by trainees. Nevertheless, lawyers giving legal assistance to arrested persons must be competent in order for the proceedings to comply with the European Convention. In April 2004, the EU published a Framework Decision which proposes that suspected persons be given access to legal advice from a qualified lawyer soon after their arrest.

Within the EU countries there is universal acceptance that the caselaw of the European Court of Human Rights requires that persons being interrogated in relation to a criminal offence, but not yet formally charged, enjoy the protection of Article 6(3)(c). Whereas European citizens benefit from legal advice before answering any questions by the police, a Maltese citizen enjoys the protection of Article 6 only after he or she is arraigned before the Court of Magistrates and formally charged with the offence. This is a serious disparity that must be addressed forthwith. Malta is lagging far behind in its international obligations insofar as Article 6(3)(c) is concerned.

A European citizen in Malta enjoys inferior protection vis-à-vis another European citizen in France, Germany, Italy or the UK insofar as the right to legal assistance and representation is concerned. This is not right and should be rectified, no matter the objections raised by the Police Force. This right starts to apply from the time a person is informed that he is suspected of having committed a criminal offence and is no longer free to leave police custody.

One must remember that a person is presumed innocent until proven guilty in a court of law. An arrested person is therefore to be presumed innocent and as such ought to be given the opportunity to understand the legal implications concerning his rights, something that he can only do with the assistance of a lawyer.

On November 29, 2004, in Lanzon vs. Commissioner of Police, the Constitu-tional Court ruled that a young person aged 16 and two months who was arrested and subjected to custodial interrogation and made an incriminating statement was not entitled to legal assistance during questioning. The applicant submitted in support of his claim the judgment given by the European Court of Human Rights Magee vs. United Kingdom given on June 6, 2000. However, the Constitutional Court held that one cannot compare the intimidating atmosphere obtaining in the Magee case with the applicant's situation and attributed this young person's fear to the fact that he had been caught 'red-handed' and that he was interrogated by the police, albeit for a few hours.

What is most disconcerting, however, is that the Constitutional Court held that, notwithstanding interrogation by the police, this person aged 16 years and two months was at liberty to opt to remain silent so as not to incriminate himself ("seta', kieku ried, zamm is-silenzju tieghu biex ma jinkriminax ruhu").

According to the Constitutional Court, since a person who has passed his 16th birthday no longer enjoys the status of 'a child or young person' in terms of Chapter 285, he cannot expect to be treated in a 'special' way when in custody, unless he is suffering from a psychological problem justifying a different treatment ("ma tistax tippretendi li tigi trattata b'xi mod 'specjali' in konnessjoni ma' arrest u investigazzjoni ta' reati, salv, naturalment, xi cirkostanzi eccezzjonali bhal, per ezempju, jekk jirrizulta li l-persuna in kwistjoni jkollha xi problemi psikologici partikolari"). This puts this 16-year-old youth in the same legal position as a hardened criminal.

What this really implies is that it is not just adults who are denied the right to legal assistance in Malta but also minors aged between 16 and 18 unless they are suffering from psychological problems.

I suspect that the reason why applications regarding an arrested person's right to legal assistance very rarely reach Strasbourg is that other countries in Europe recognise and respect this right and implement it as a matter of course. Indeed, it is clearly the case that, in the rest of Europe, it is now very difficult, if not impossible, to rely on incriminating statements where access to a lawyer was denied at the relevant time. In Malta, however, the right to legal advice during custodial interrogation is not recognised in the case of 16 year olds; more so in the case of adults.

For these reasons, the sooner the Framework Decision that was proposed at EU level on April 28, 2004 is implemented, the better for us all. It should be the rule that any person has the right to be questioned in the presence of counsel unless he or she has voluntarily waived the right to counsel.

War criminals enjoy better rights than Maltese citizens; they have a right to counsel during interrogation from the moment that they are arrested. European citizens who are citizens of Malta are compelled to 'hope' for the sweet 'imposition' of minimum procedural safeguards for suspects by the EU authorities in Brussels. Do we enjoy the same rights as our counterparts in other EU countries?

Dr Azzopardi is a lecturer and thesis examiner in Human Rights Law at the University of Malta.