The reconciliation of conflicting human rights before courts having criminal jurisdiction

Abstract

This study deals with some conflicts which arise during the pendency of criminal proceedings. The object which is the subject of such conflict is a right protected by law. The study considers conflicts arising between human rights belonging to stakeholders pendente lite, meaning throughout criminal proceedings, i.e. as stated in the title of the dissertation ‘before Courts having criminal jurisdiction’. Such conflicts are detected in this study, after which the author proposes methods to attempt to reconcile such conflicts in a manner which upholds the respect for fundamental rights of the stakeholders, be they victims, witnesses, or the accused. The dissertation deals with some facets of the right to a fair trial, all of which are revealed in the following research questions: I. Can the right to a public hearing be restricted? II. Can the presumption of innocence of the accused be breached by prejudicial pre-trial publicity? III. Can rights of victims be prejudiced by the judicial admission of crimes for the purposes of the obtainment of plea-bargains? The author suggests that Article 517 of the Criminal Code be re-drafted by inserting the words ‘or of the complainant or any witness’ after the words ‘or of the party charged or accused’. Article 391 of the Criminal Code fails to mention specific requirements which the prosecution must prove to secure witness protection and anonymity. The author proposes that certain requirements be explicitly included in Maltese Law. The author heavily criticized the half-baked parliamentary measure to the effect that only drug trafficking cases were spared the applicability of the proviso to Article 436(6) of the Criminal Code by virtue of clause 3 to Act VII of 2025 which came into effect on 17 March 2025. No change has been effected in so far as the crime of willful homicide is concerned.