Citizens are not adequately protected against abuse of power and discrimination during roadblocks set up by the police and army, according to criminal lawyers contacted by The Sunday Times.
Last weekend, hundreds of individuals were subjected to vehicle checks and frisking on their way to the Ċirkewwa ferry terminal to board the Gozo ferry for the Nadur carnival. Nine were detained, the majority on drug-related offences.
Since January, the Armed Forces of Malta (AFM) have already set up 25 vehicle check points, checking 295 cars that led to 28 individuals being detained - 14 for traffic contraventions and 14 on drug-related arrests. The detentions amount to less than 10 per cent of cars checked.
The AFM defend the necessity for setting up vehicle check points as "efficient" in law enforcement and crime fighting, particularly drugs. But critics argue that indiscriminate roadblocks are an invasion of civil liberties which is not permitted in the majority of European countries.
The number of people detained during vehicle check points held last year amounts to about 5.8 per cent of people checked, which is a generous figure since it is based on the assumption that each car held carried just one passenger.
According to the law, those tasked with law enforcement should only stop vehicles and search passengers if they have "reasonable suspicion" that an individual has or is about to commit a crime. But, in reality, individuals who have questioned an officer's grounds have ended up in court charged with obstructing a police officer in the execution of his duty.
Lawyer Joseph Giglio told The Sunday Times: "Experience teaches us that where people have dared to protest they were eventually charged in court with having interfered or tried to influence people carrying out their duties, and this is precisely why the legislative framework at the moment and the way it is implemented is clearly not sufficient."
Road checks may be conducted by the police or the army whenever there are reasonable grounds for suspicion that a search may lead to any of a number of scenarios contemplated by the law, including the possible discovery of something prohibited (such as drugs) or the violation of traffic regulations (such as drink-driving). These two reasons could explain the presence of road checks when large activities take place.
Although "reasonable suspicion" is a condition, there is no hard and fast rule on who may be stopped. Once the road check has been authorised by a high ranking officer, it all boils down to the discretion of the person carrying out the exercise.
"Although it is a good thing to have laws to prevent crime, I think an ordinary citizen should be given adequate and effective remedies to seek redress if there is an abuse in the exercise of these powers," Dr Giglio said.
"A remedy does exist because if you are claiming that you were stopped for no reason, you could sue for breach of human rights but in reality these are not adequate or effective enough. They do not serve as sufficient deterrent for abuse."
According to the police code of ethics, officers must abide by three main principles, namely: that no one is above the law; human dignity is to be respected at all times in all circumstances; and they should protect and respect the fundamental and human rights of all individuals.
Failure to abide by these principles could lead not only to disciplinary but also to criminal proceedings.
Unlawful or unnecessary exercise of authority, without good and sufficient cause constitutes an offence against discipline in terms of the Police Act. This applies without any exception in the case of road checks as well, lawyer Emmanuel Mallia said.
But in practice, there is a serious risk of arbitrariness in the granting of such broad discretions to a police officer and it could also seriously increase the risk of discrimination.
Dr Mallia said it was essential that these powers be proportional and reasonably justified, and incorporated within a system of checks and balances which reduced the risk that the individual suffered breach of his human rights by ending up at the mercy of a police's discretionary powers.
"Allowing the police to treat everyone like criminals will not necessarily lead to stopping the few individuals who want to commit a crime," Dr Mallia said.
"Our relevant legal provisions on the powers of stop and search due to the requirement of reasonable suspicion seem to provide for a balance between the liberty and security of the citizens, yet it is not a guarantee that citizens will be adequately safeguarded against abuse and intimidation while these powers are exercised," he added.
Maltese law contrasts sharply with similar legislation in the UK that regulates police powers to stop and search. While English law states that reasonable suspicion depends on the circumstances in each case, it specifies that "there must be an objective basis for that suspicion based on facts, information, and / or intelligence".
It also stipulates that reasonable suspicion can never be supported on the basis of personal factors but must rely on information about, or some specific behaviour by, the person concerned.
The AFM said their personnel were trained to follow standard operating procedures and rules of engagement in line with international practice, which ensure a uniform common standard in the performance of this task.
The army also stated that vehicle checkpoints are conducted appropriately when and where required in support of the local law enforcement authorities and discretion is applied when sampling vehicles or people who are checked.
Questions sent to the police to explain their code of conduct when searching people and the precautions taken to ensure civil liberties are not infringed were not answered at the time of going to print.
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