PM's words found to have violated right to fair trial

Words used by the prime minister in his news conference on two former judges who today stand charged with receiving bribes were yesterday deemed by the Constitutional Court insufficient to respect the presumption of innocence of an accused person.

The criminal proceedings against the two former judges are however to continue after yesterday's judgment.

The Constitutional Court, presided by Mr Justice Anton Depasquale, Mr Justice Albert J. Magri and Mr Justice Geoffrey Valenzia yesterday upheld the constitutional reference filed by former chief justice Noel Arrigo and former judge Patrick Vella.

Yesterday's judgment overturned that delivered last December by the First Hall of the Civil Court which had concluded that the prime minister's remarks at a news conference, and the ensuing statement released by the government, did not breach the judges' rights.

The constitutional reference to the Civil Court was made after the complaint was brought up by lawyers for Judge Arrigo, 52, of Siggiewi, and Judge Vella, 58, of San Pawl tat-Targa.

They are pleading not guilty to two counts of bribery and one of revealing official secrets in relation to a sentence handed down by the Court of Criminal Appeal in a drugs case against Mario Camilleri on July 5, 2002.

The two judges claimed that the prime minister made statements asserting their guilt before they were tried by a court and had, at best, clouded their constitutional right to be presumed innocent until proven guilty.

The Magistrates' Court had ruled that the judges' complaint in relation to the news conference given by the prime minister on August 1, 2002, could not be termed frivolous and vexatious and merited examination by the Civil Court in its constitutional jurisdiction.

It however dismissed a second complaint, made against the media, remarking only that the right to freedom of expression was sanctioned as a fundamental human right in the constitution.

The prime minister had said, in his news conference, that some "days before the appeal judgment was handed down, it was learnt that Chief Justice Noel Arrigo and Mr Justice Patrick Vella had been approached on behalf of the defendant (and asked) to reduce the jail term by four years, from 16 years to 12 years", and that "these two judges were promised thousands of liri each".

He also said that after the judgment was delivered, it resulted that money had been paid to the two judges.

Both former judges submitted that these statements amounted to an invitation to the public to find them guilty and this had been reflected in certain reports and comments in the media.

Thus, their right to be presumed innocent had been violated for the prime minister had declared them guilty.

The defendants also referred to the motion for impeachment filed before the House of Representatives and to some newspaper articles, and claimed they could never have a fair trial.

The First Hall of the Civil Court had declared that the terms of the constitutional reference were limited to the prime minister's news conference and to the news release issued following the news conference.

The Constitution and the European Convention on Human Rights both provided that it was a fundamental human right of an accused person to have a fair trial within a reasonable time by an independent and impartial court established by law.

Both laws stipulated that the accused was to be considered innocent until proven guilty.

The right to the presumption of innocence was one element of a fair trial, and it could be violated both by a judicial authority and by other authorities, as in this case, by the prime minister's declaration in the course of the news conference.

The court noted that the news conference was held in connection with the police investigations into the facts that had led to the judges being arraigned in court.

The facts leading to the news conference were extraordinary and unique, and the prime minister was therefore justified in calling it to inform the public of what was going on so as to allay any fear of an institutional crisis.

The public would also be made aware that the police were simply fulfilling their legal duties.

The prime minister had commenced his news conference by informing the public that the two judges were being investigated by the police for serious crimes and concluded by appealing to the public to await the outcome of the investigations according to law.

The court found that it could not conclude that the prime minister had imputed guilt to the two judges, for he had used the terms generally used when giving information about some arrest or ongoing investigations.

The court also referred to judgments of the European Court of Human Rights which had concluded that the right to the presumption of innocence could not impede the authorities from giving information to the public about criminal investigations.

This information had however to be given with discretion and circumspection in order to respect the presumption of innocence.

In this particular case, the prime minister had made certain reservations about the case, and it could not be said that his words had categorically implied the guilt of the two judges.

The Civil Court concluded that the news conference and news release did not violate the fundamental human rights of the two former judges.

Both former judges appealed from this decision to the Constitutional Court.

In yesterday's judgment the appeal court found that parts of the applications of appeal of Judge Arrigo and Judge Vella were valid and deserved to be upheld.

Both appellants had submitted that the first court had wrongly concluded that the right to a fair trial was only applicable after the criminal procedures were concluded.

Judge Arrigo had invoked the plea that objective impartiality of the procedures had to be examined.

The Constitutional Court noted that the Constitution and the European Convention on Human Rights both provided that human rights provisions could be invoked by an individual on the ground that his fundamental human rights were going to be violated.

As a result, these submissions of the appellants were upheld and the Constitutional Court ruled that it could proceed to examine their complaint that their fundamental human right to a fair trial had been violated.

Both former judges had submitted that this right was threatened as they could not have a fair hearing by an independent and impartial court.

Counsel to appellants had made it clear that this complaint was based upon a lack of objective, rather than subjective, independence and impartiality.

The Constitutional Court found in favour of the submissions raised by the attorney general that there were enough guarantees in the judicial system to ensure that even if the news conference had prejudiced the presumption of innocence of appellants, one could not say that the crimes with which they had been charged could not be determined by an objectively independent and impartial court.

This was so in the eventuality that the appellants were tried by a magistrates court or by a trial by jury, or in the eventuality of an appeal to the court of criminal appeal.

When examining appellants' submission that their right to be presumed innocent had been violated, the constitutional court considered the news conference called by the prime minister when the two former judges had been investigated by the police.

The first court had concluded that once the prime minister had made certain reservations at the news conference, then all necessary discretion and circumspection required by law had been observed.

However the constitutional court ruled that it did not agree with this part of the judgment of the first court, for case law of the European Court of Human Rights had ruled that there had to be "all the discretion and circumspection necessary if the presumption of innocence is to be respected".

The court said that it had also to examine whether an established principle of the European Court had been observed, namely that "whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made".

The European Court had ruled that the right to the presumption of innocence would be violated if a statement of a public official concerning a person charged with a criminal offence reflected an opinion that the accused was guilty before he was proved so according to law.

The European Court had also emphasised the importance of the choice of words by public officials in their statements before a person had been tried and convicted.

Whether a statement of a public official was in breach of the presumption of innocence had to be determined in the context of the particular circumstances in which the impugned statement was made.

The constitutional court noted in yesterday's judgment that by the use of the words "it became known" (sar maghruf) and "it resulted to the police" (rrizultalha) the prime minister had not, in the news conference, used all necessary discretion and circumspection to respect the presumption of innocence.

There was therefore objective reasoning to suspect that the prime minister had considered the two former judges guilty of the charge of receiving bribes.

This was subjectively reinforced by various newspaper articles of the news conference.

Extracts quoted by the constitutional court showed that the prime minister's exhortation to the public to await the results of the legal investigations had not had much effect.

As a result, appellants' contestation that their right to the presumption of innocence had been violated was upheld by the constitutional court.

It therefore followed that their right to a fair trial had been violated on the basis of the violation of the presumption of innocence.

The constitutional court however concluded that as appellants' fundamental human right to trial by an independent and impartial court had not been violated, there was no reason to halt the criminal proceedings against the former judges.

In the circumstances of the case it was opportune for yesterday's judgment to be inserted into the criminal proceedings against the two former judges, from which the constitutional reference was made.

Dr George Abela and Dr Joseph Giglio were counsel to Judge Arrigo while Dr Toni Abela, Dr Michael Sciriha and Dr George Cutajar were counsel to Judge Vella.

Attorney General Anthony Borg Barthet also appeared as counsel to the police commissioner.