There is a distinction between civil and criminal proceedings when analysing whether the case took a reasonable time because, in criminal proceedings there may be a loss of liberty. This was held in a constitutional judgement delivered by the First Hall of the Civil Courts on 13 April 2021 presided by Madame Justice Anna Felice in Noel Xuereb -v- Avukat Ġenerali u il-Kummissarju tal-Pulizija.
Xuereb filed a constitutional application wherein he explained that he was charged in January 2007 of corruption crimes. He was held under preventive arrest for a few days and was give bail where he had to sign at a police station twice a week. The prosecution closed their evidence in February 2012, while the defence was allowed to present its evidence in May 2017. The case was finally decided on 1 April 2019, where he was found not guilty of these charges. 12 years had passed and felt that this was a breach of his fundamental human rights as protected by the European Convention on Human Rights and the Constitution. The Attorney General and the Commissioner of Police argued that when seeing whether the case took too long, one had to see the complexities of the case. Furthermore, there was no time limit for the Courts to observe.
Article 39 of the Constitution reads:
“39. (1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
This is echoed in Article 6(1) of the European Convention.
The Court quoted from a previous judgement Joseph Camilleri -v- Avukat Generali, decided on 27 May 2016 held that the complexity of a case should be measured on the notion “what was at stake” for the applicant in a given case. There is no set of given criteria for the courts to be guided on what constitutes unfair hearing due to delay. Therefore, the courts should take all the factors into consideration. In Der Grune Punkt – Duales System Deutschland -v- Commission, the European Court held:
“…. The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long”.
The Maltese Court did tackle the meaning of reasonable time in other cases and held that the judge does have a discretion to measure the time it took for a case to be decided. The Court may be of the opinion that a case took too long or else whether it is normally acceptable for a case to take so long.
In David Marinelli -v- Avukat Ġenerali decided by the First Hall of the Civil Courts in its constitutional jurisdiction decided on 3 July 2008, held that there should be distinction between criminal and civil proceedings, because in the former the freedom of a person is an issue. It is important that the criminal proceedings take longer than necessary. In civil cases an amount of delay will be acceptable.
The Court held that there was breach of Xuereb’s fundamental human rights. As to the remedy the court held that a simple declaration that there is a breach could be sufficient in certain cases, however, the Court also give compensation for such a breach of human rights. Such compensation does not equate as calculated in civil cases. In Raymond Urry et -v- Avukat Ġenerali of 27 February 2015, the Constitutional Court listed a number of factors the court should take into consideration. These include the excessive delay, the nature of the criminal proceedings, the uncertainty and frustration caused.
The Court saw that Xuereb was employed with MITTS and handled large projects. He formed part of the Evaluation Committee of the IT tender of Mater Dei Hospital.
When he was arraigned his job was terminated. He fell into a depression which affected him not being able to have children. The Court held that he deserved compensation since the criminal proceeding was hanging on his head too long and there was too much at stake. The Court then moved to award Xuereb €100,000 in damages for breach in his human rights.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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