A landmark ruling delivered by the Constitutional Court has determined that individuals facing criminal accusations enjoy the right to remain silent when testifying before Parliamentary committees.

The judgment follows a case instituted by Francis Portelli and Anthony Cassar, who had been called upon to testify before the Public Accounts Committee while still subjected to criminal proceedings against them in relation to the same conduct. Through their lawyer, the two invoked their right to remain silent. Subsequently, the Committee determined that an earlier ruling delivered by the Speaker was applicable to the two applicants, and that as a result, witnesses had to request an exemption for every question which could possibly incriminate them, and in case that any member of the Committee objects, reference would be made to the Speaker who would determine whether the said witness is to be compelled to answer the question.

At first instance, the Civil Court First Hall (Const. Jurisd.) noted how the two applicants had been provided with a Guide for witnesses which, amongst others, mentions the right of protection from self-incrimination. However, in this case, the applicants were facing referral to the Speaker and potential punishment ranging from a six-month term of imprisonment to a fine of over €1,100, in accordance with the Parliamentary Privileges Ordinance. The First Hall of the Civil Court had concluded that this case should have never been subjected to the Speaker’s ruling as the Guide for witnesses specifically states that this procedure should only be followed in the eventuality that a witness refuses to answer a question for any reason other than potential self-incrimination. In view of the applicants’ concurrent status as accused before the Criminal Courts, it was determined that the Speaker’s ruling and Guide should not be rendered applicable with respect to their testimony before the Committee.

The Speaker of the House and Chairperson of the Commitee (the defendants) appealed, aruging that the nature of the Committee was not equatable to that of the ordinary courts, and only aimed at scrutinising the Government’s work. They stated that the applicants’ right to a fair hearing was adequately protected by means of the Guide which provided witnesses with the right not to answer incriminating questions. They contended that should this be extended to a broader right to remain silent and not answer any question (incriminating or otherwise), Parliament’s role in a democratic society would be greatly undermined.

The Constitutional Court however disagreed. In a ruling delivered on 26 January, it stated that despite not falling within the definition of Art.6 ECHR (“determination of his civil rights and obligations or of any criminal charge against him”), investigative proceedings such as that carried out by the Public Accounts Committee should provide their witnesses with all safeguards guaranteed by that article when they are simultaneously subjected to proceedings falling within that definition, and with respect to the same subject-matter. The Court particularly referred to Shannon v. The United Kingdom, whereby this principle was applied with respect to an individual who, while standing charged before the criminal courts was interviewed separately by financial crime investigators. As a result, the Constitutional Court concluded that by providing only the right not to answer self-incriminating questions and not also a broader right to remain silent, the applicants’ rights under Art.6 ECHR and Art.39 of the Constitution were not adequately safeguarded. Furthermore, the combined effect of the applicability of the Speaker’s ruling and the Guide for witnesses meant that by exercising their right to silence, the applicants were at risk of incurring punitive sanctions which included an effective prison sentence. This was deemed to constitute a breach of the aforementioned two articles. The first instance judgment was therefore confirmed.

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