The right against self incrimination under Maltese Law with particular reference to the official secrets act

Abstract

An analysis of the Official Secrets Act from the perspective of the right to a fair trial and the right against self-incrimination reveals potential inconsistencies between the Official Secrets Act's provisions and the human rights provisions of the Constitution of Malta and the European Convention of Human Rights and Fundamental Freedoms. Article 39 of the Constitution is to a large extent modelled on Article 6 of the Convention. Nevertheless, in certain respects article 39 of the Constitution goes beyond Article 6 of the Convention. A fundamental aspect not expressly mentioned under Article 6 of the Convention concerns the right not to give evidence during the trial granted to an accused person under article 39(10) of the Constitution. Naturally, one may argue that this right in the Convention is but an element of the right to a fair trial. This paper thus studies both these human rights provisions and tries to consider the extent to which articles 17 and 22 of the Official Secret Act contravene the provisions of article 39 of the Constitution of Malta and Article 6 of the European Convention of Human Rights and Fundamental Freedoms.