Public security versus fundamental human rights : a comparative analysis of the rights of the suspect in the light of recent developments in Maltese criminal law

Abstract

One of the major difficulties envisaged by the European Convention of Human Rights and Fundamental Freedoms is the striking of a balance between the protection of public safety and the respect for the human rights of every single individual. In this light, the Convention lays down a number of minimum human rights which every State party is bound to respect, at the same time leaving the said States wide discretion as to how to implement the protection of these rights on a domestic level. Having ratified the Convention in 1987, Malta, too, is bound by this international obligation. It is recognised that one of the areas in which the two ends of the balance are mostly in conflict is that of criminal law. Notwithstanding its obligation to protect all citizens from crime, the State must treat the offender with the level of respect required by the Convention. Indeed, since the suspect's guilt hasn't yet been proven and pronounced by a court of law, he is to be considered innocent, irrespective of how incriminating the evidence against him is.

The aim of this thesis is to analyse the level of human rights' protection granted to the suspect by Maltese criminal law. In particular, this thesis analyses the various recent amendments introduced in the Criminal Code and Police Act and their compliance, or otherwise, with the Convention requirements. Since these amendments are meticulously modelled on English law, constant parallels are drawn between the relevant provisions of the domestic laws of the two States, as well as those of other State parties to the Convention. By highlighting the human rights' problems faced by the main sources of our law and the methods employed to overcome them, the author aims at putting forth a number of proposals for the further necessary reform of our criminal laws.

The thesis analyses the rights of the suspect in the chronological order of events experienced by the suspect. Thus, following an introductory overview of the relevant pieces of Maltese legislation and the human rights' concepts aimed at being achieved by them, Chapter One delves into the methods employed by the State to detect criminal suspects. Methods of intrusive surveillance and interception, such as telephone tapping, as well as undercover operations are analysed · in the light of Articles 8 and 6 of the Convention.

Chapter Two analyses the carrying out of Search operations by the police, whilst Chapter Three deals with the suspect's arrest. Here, questions regarding the suspect's right to privacy, liberty and freedom from torture and inhuman and degrading treatment are dealt with in detail.

Finally, Chapter Four sheds light on the methods of pre-charge interrogation of the suspect employed by the police and the detention conditions required by the Convention. The introduction in our law of the controversial practice of drawing adverse inferences from the suspect's silence during interrogation is analysed herein. On the basis of this comparative analysis of the suspect's rights, the author concludes that, notwithstanding the legislative efforts to bring our law in line with the Convention requirements, to date the balance still weighs excessively in favour of the public safety as opposed to the suspect's human rights. Unless further legislative safeguards are introduced to protect the position of the suspect, Maltese criminal law is bound to face a number of human rights' problems which could seriously hinder the smooth running of criminal actions.