Balancing the protection of minor witnesses and the rights of the accused : article 646(2) of the Criminal Code

Abstract

On the 28th of July 2006, Act Number XVI of 2006 was passed in the House of Representatives. This law brought with it a number of changes, one of them involving the manner in which the minor witness is to be examined during the process under Article 646(2) of the Criminal Code, providing that if there is a recording of the testimony during the committal stage, the minor witness is not to be called during the trial itself. The principle of orality is considered to be important in the Adversarial system, and these rules are a blatant exception. This thesis seeks to examine it, and the fair trial issues that arise from it on all fronts. The first chapter will deal with the general rules. What are the rights to a fair trial, and what sort of advancements have been made on the front of protection to minor witnesses? These two will be examined, introducing us to the ambit that will be dealt with in the rest of the dissertation. On first glance, the right to cross-examination is endangered by not allowing the minor witness to testify viva-voce. The second chapter will take a comparative and human rights aspect and examine the different provisions regarding this issue. Different states' legislation will be examined, and a comparison made to the decisions of the European Court of Human Rights. What constitutes a breach to the right to a fair trial? After laying down the Fair Trial groundwork, a more detailed examination needs to be made of the Maltese system. The entire system of the examination of minors is built with the final goal that the minor will not testify at the trial. In itself, the Maltese system does not infringe on any of the rights to a fair trial - the examination during the committal stage, allowing the cross-examination at that stage, and the methods of However, an examination of the Maltese legal system shows that the system is not quite ready to provide for enough disclosure for the right to a fair trial to be properly observed. It is important when one comes to examine the minor witness to have all the necessary information at their disposal, and the Maltese system does not provide enough protection to do so. To show Malta's lack in this regard, a comparative approach is taken to both the foreign systems of disclosure, as well as the European Court's decisions on the issue. The disparity needs to be made between evidence that is used and that which is not used, and dealt with both in a general and specific manner. With this in mind, an examination is made of the discretionary provisos made in case of new evidence, and suggestions are given to improve the Maltese system to bring it up to par, ensuring that both the protection of the minor witness and the right to a fair trial are sufficiently protected.