Fair hearing violation ruling confirmed

The Constitutional Court has upheld a judgment handed down by the First Hall of the Civil Court in 2002 whereby it was established that the fundamental human rights of an applicant to a fair hearing within a reasonable time had been violated.

The judgment was delivered in the constitutional application filed by George Xuereb against the Court Registrar, the Permanent Secretary at the Justice Ministry, the Attorney General and against Dorothy Xuereb.

Xuereb had claimed that his fundamental human right to a fair hearing had been violated as a result of excessive delays in the hearing and conclusion of judicial proceedings he had filed against his wife.

Xuereb had filed a writ in the First Hall of the Civil Court in 1983 in order to give effect to a previous decision filed earlier that year.

By April 2000 his court case had not yet been decided upon and Xuereb had filed a constitutional application requesting a remedy for the alleged breach of his fundamental human rights.

The First Hall of the Civil Court had found in Xuereb's favour and had ordered the Attorney General to pay him Lm3,000 by way of compensation for the violation of his fundamental human rights.

The Attorney General lodged an appeal to the Constitutional Court presided over by Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

In its judgment the appellate court noted that case law of the European Court had established that the factors to be taken into consideration when examining an allegation of excessive delays in judicial proceedings were the complexity of the case, the actions of the parties to the suit and the actions of the judicial authorities.

No one factor was decisive and therefore each case had to be examined on its own merits and in the light of all the facts and circumstances of the case.

Furthermore, the right of the parties to a suit to a decision in a reasonable time had to be weighed against the need to examine all the facts of the case and the applicable law accurately and the need to follow procedures.

The Constitutional Court noted that Xuereb had commenced litigation on July 1, 1983 in order to obtain a warrant in factum against his wife Dorothy.

The case was decided on October 2, 2001 after a period of over 18 years. The case originally filed by Xuereb was not, the Constitutional Court noted, one of exceptional complexity.

It was true that the issue of a warrant in factum was not a court case that was commonly filed and therefore the judge might have to act more cautiously than in other cases since the eventual outcome could mean that defendant would be jailed.

However, what an action for the issue of a warrant in factum entailed was the request by plaintiff for a judgment already issued in his favour to be enforced. Consequently, the presiding judge did not need to examine the original dispute between the parties but only to carry out a prima facie examination of the case. Such a prima facie consideration ought not to have taken 18 years to be determined.

From an examination of the records of the case it resulted that Xuereb had taken over nine years to conclude the production of his evidence and had often failed to attend court. In fact, the case had stagnated for six years between 1986 and 1992 as a result of Xuereb's inactivity. This six-year period had to be deducted from the length of time the case had taken to be decided, the Constitutional Court said.

However, even after deducting this six-year period, the period of over 12 years for the case to be concluded was not justified for the courts were obliged to ensure that cases were heard expeditiously.

The Constitutional Court noted that in many occasions the case filed by Xuereb had been put off by the court as the presiding judge had been called upon to take on work in another court.

The Constitutional Court declared it was unfortunate that the local judicial system implied that judges could be called upon to preside over more than one court and indeed in cases over three or four courts, with an exaggerated number of cases in each court and with minimal, or non-existent, back-up.

Furthermore, there was excessive bureaucracy on the part of the administration of the courts. Despite this, however, the Constitutional Court declared that, when one examined Xuereb's case in its entirety, one had to uphold the conclusion reached by the First Hall of the Civil Court, in its constitutional jurisdiction, and rule that Xuereb's right to a fair hearing within a reasonable time had been violated. In conclusion, the Constitutional Court upheld the judgment of the First Hall of the Civil Court but ruled that the damages awarded to Xuereb be reduced to Lm600 from Lm3,000.