The right to fair trial in the Constitution of Malta and European Convention of Human Rights : a comparative analysis of wording and interpretation

Abstract

Human rights lie at the heart of democratic states and have attracted numerous judgements from the time of enactment in international instruments. Locally, they have reached their crux through the ratification of individual petition in 1987, consenting alleged victims of human rights violations to sue their own state for alleged violations. Although there exist no hierarchy amongst human rights, vital is the right to fair trial as it guarantees that any action brought before the courts, criminal or civil, will be held procedurally independent and impartial, upholding the minimum guarantees. This is the focus of my research project, delving into the differences which exist between Articles 39 and 6 of the Maltese Constitution and the ECHR respectively, both dealing with the notion of fair trial. Although some of the differences exist in the express wording of the provisions, others have to be examined through court interpretations. The differences discussed in this research project are the distinction between civil and criminal proceedings under the jurisdiction of courts and tribunals, the right of representation and presence of the accused, the protection against double jeopardy, the right against selfincrimination, protection against retroactivity and the right to be presumed innocent. After balancing out both provisions, it is clear that the Maltese Constitution, alongside the Criminal Code which supports very much many of the fair trial guarantees, afford a higher standard of protection than the ECHR yet the provisions of the Convention to which Malta is a contracting party, have their own weight which cannot be disregarded. Nonetheless, there exist no obligation to change its laws bringing them in conformity with the rules of the Convention, hence full harmonization of laws can only be achieved if both provisions are brought at a par. Therefore, entrenching the ECHR in the Constitution may be the necessary step forward.