does in fact exist a rule against self-incrimination in Maltese criminal
law. Section 39 (10) of the Constitution, which can only be amended
through a two-thirds majority, stipulates that: "No person who
is tried for a criminal offence shall be compelled to give evidence
at his trial."
2. In addition,
the Criminal Code contains a provision which protects witnesses from
incriminating questions. Section 643 declares:
"No witness may
be compelled to answer any question which tends to expose him
to any criminal prosecution:
that, in the case of a prosecution under paragraph (h) of section
338, on a charge of providing the place for the playing of games of
chance for money or money's worth, or of abetting such games, any
person who had taken part in or had been a partner of any player at
any such game, whose evidence is required in support of such charge
as aforesaid, shall be compellable to answer any question respecting
that charge, notwithstanding that the answer thereto will expose him
to criminal prosecution; but in any such event, any person who shall
have given evidence in respect of such charge, and who shall have
made a true and faithful statement touching such charge, to the best
of his knowledge, shall thereupon obtain from the court a certificate
to that effect, and he shall, in consequence, be exempted from all
punishments in respect of his participation in the games forming the
subject-matter of the charge upon which he gave evidence as a witness."
B. Refugee status
is party to and implements the 1951 Convention relating to the Status
of Refugees, agreeing to accept, recognize and protect refugees. Due
to Malta's limited size, very high population density and financial
constraints, these obligations were limited in scope to cover only
refugees coming from the European continent. In spite of this, in
January 1997 more than 84 per cent of the 538 refugees residing in
Malta hailed from non-European countries, the largest number originating
for refugee status are made to the Emigrants Commission, the contact
point of the Office of the United Nations High Commissioner for Refugees
in Malta. The Commission, which is independent of Government, passes
requests for the granting of refugee status to the UNHCR Rome office.
The Home Affairs Division of the Office of the Prime Minister, the
Ministry of Foreign Affairs and the Immigration Division of the Police
Department are also involved in the process of regularizing a refugee's
position in Malta. Refugees enjoy free health care and education during
their stay in Malta.
C. Restrictions on compensation in torture cases
of torture can claim both legal and, in recent years, moral damages
in the Maltese courts.
II. COMPLIANCE WITH THE COMMITTEE'S CONCLUSIONS AND RECOMMENDATIONS
A. Immediate access to counsel
6. Most detainees
are informed by the arresting officer of their right to counsel. Many
others would already be aware of their rights. Nevertheless, no specific
law obliges an arresting officer to inform the detained person of
his right to counsel. It should be noted that an arrested person must
be brought before a court within 48 hours of his arrest when he would
certainly have the assistance of a lawyer. In criminal cases a person
need not prove inability to pay for a lawyer in order for the State
to provide free legal counsel; it is enough for such a request for
legal aid to be made.
any person who feels that he has been wrongly put under arrest can
invoke section 137 of the Criminal Code which is the equivalent of
the British habeas corpus or section 5 of the European Convention
on Human Rights.
of reference, section 137 of the Criminal Code is reproduced hereunder:
magistrate who, in a matter within his powers, fails or refuses to
attend to a lawful complaint touching an unlawful detention, and any
officer of the Executive Police, who, on a similar complaint made
to him, fails to prove that he reported the same to his superior authorities
within twenty-four hours, shall, on conviction, be liable to imprisonment
for a term from one to six months."
8. The Committee
would do well to fully appreciate the implications of the incorporation
of the European Convention on Human Rights as part of the law of Malta
and the possibility of bringing an action on the basis of the rights
mentioned therein. There have in fact been several occasions where
persons about to be deported have invoked article 3 of the European
Convention and article 36 of the Constitution of Malta in order to
prevent such a deportation.
9. Two such
cases never reached judgement stage. In the first case the applicant
absconded from the island. In the other case the applicant was given
the right to remain in Malta once he alleged that he was likely to
be stoned to death on his return to a particular country, due to the
fact that he had changed his faith.
10. The Government
feels that at this stage no further legislation on the matter is necessary
since recourse to the First Hall of the Civil Court for alleged breaches
of the human right in question is expeditious, inexpensive and effective.
This is due to the fact that as soon as the Maltese court is convinced
that the applicant is going to be subjected to torture or to degrading
treatment or punishment, it will issue an order to bar any such deportation.
In these matters the Maltese courts are certain to follow the landmark
Soering judgement of the European Court of Human Rights.
is satisfied that the Committee recognizes the added difficulties
that Malta faces in implementing article 3 of the Convention as a
result of its geographical position. Recent events have only served
to enhance Malta's concerns in this area.
C. United Nations Voluntary Fund for Victims of Torture
12. The Committee
also suggested that Malta make a contribution, even if symbolic, to
the Voluntary Fund. The Maltese Government is pleased to report that
it has been donating US$ l,500 to the Fund for the last three years
with the first payment being effected in December 1995.
D. Updating of general section of initial report
13. The age
structure of the population, at 31 December 1996, was as follows: