The cardinal rights pertaining to a suspect or accused person prior to the making of a confession : with special reference to Malta

Abstract

This thesis examines whether the following four cardinal rights, namely, the right to legal assistance, right to legal aid, the right to information and the right to silence are exhaustive and whether they are applied in a manner which reflects the spirit of EU law. Prior to delving into each individual right, the author will define certain keywords used throughout the thesis with the aim of establishing uniform definitions applicable to each individual right. The central question of this thesis is whether these four chosen cardinal rights are absolute rights or whether they have limited application. Focus is placed on the Maltese legal position. Whether it is in line with other European Member States in the implementation of such rights or whether it lags far behind. In so doing, the study outlines whether the intention of the legislator in promulgating these laws by transposing EU Directives is truly reflected in the court judgments which are delivered. This thesis incorporates vast references to relevant judgments delivered by the Maltese courts and includes a comparison of the same with judgments delivered by the ECtHR and the ECJ. In the case of contrasting decisions, the author highlights the differences and examines whether the decision is the result of a wrong or restrictive interpretation on the part of the Maltese courts. The study aims to show that these four cardinal rights established in the EU Directives only provide minimum standards and that there are several jurisdictions including Malta which provide more fundamental guarantees. The study questions whether the four chosen rights have in fact facilitated investigations or whether they served to complicate matters in this regard. Paramount importance is given to the fact that these rights as outlined in the letter of rights must be made known to a suspect prior to the commencement of any investigation by a police officer or any judicial authority. If these rights are afforded to suspects at the early stages, this would guarantee a fair trial in the criminal process and reduce the possibility of violations of rights. So far, Malta has transposed all the EU Directive relating to three of these cardinal rights, although it is currently facing infringement proceedings about the right to legal aid. Once the EU Directive on legal aid is transposed into national legislation, there will be an overhaul in the application of this right. Currently, the right to legal aid is available to every person on the island. There is no merits or means testing. In fact, it may be stated that this right is often abused to the detriment of those suspects and accused persons who require legal assistance and cannot afford to pay for such assistance. The harmonisation of these rights in Member States ensures that citizens of the European Union are treated, in the same way, irrespective of which country they happen to be in when faced with a criminal investigation. In its conclusion, the study highlights certain areas which need improvement by putting forward adequate recommendations to ensure that the right to a fair hearing is properly safeguarded.