Constitutional Court overturns human rights breach ruling

The Constitutional Court yesterday upheld an appeal lodged by the authorities from a judgment delivered by the First Hall of the Civil Court on June 8.

The first court had upheld a constitutional application filed by former police officer Noel Grech and ruled that Mr Grech's fundamental human right to a fair hearing had been violated by the judgment delivered in his regard by the Court of Criminal Appeal on October 28, 2004.

Mr Grech had submitted that his fundamental human rights had been violated during the course of the criminal proceedings instituted against him.

He claimed that the Court of Criminal Appeal had found him guilty, following an appeal filed by the Attorney General, even though the grounds of appeal had been withdrawn by the Attorney General.

The court heard that on June 19, 2004, Mr Grech and another person had appeared before the Magistrates' Court on prostitution-related charges involving trafficking in foreign women.

Mr Grech had admitted to the charges against him and on July 15, 2004 the Magistrates' Court, as a court of criminal judicature, had sentenced him to two years imprisonment suspended for four years and fined him Lm200.

The Police Commissioner had filed an appeal from the judgment to the Court of Criminal Appeal which appointed the case for hearing on September 30, 2004 and it was then put off for oral submissions to October 14.

On that date the Attorney General had withdrawn the first ground of his appeal while declaring that there was another ground of appeal, namely that the first court had failed to impose an effective prison sentence.

Mr Grech's lawyer had submitted that no other ground of appeal existed in this case.

In its judgment, delivered on October 28, 2004, the Court of Criminal Appeal had confirmed the fine imposed on Mr Grech but had revoked the suspended sentence and instead sentenced him to three years imprisonment.

The first court had found that application of appeal appeared to contain only one ground, namely that the Court of Magistrates could not, in the circumstances of the case, impose a suspended sentence.

The court declared that the Attorney General had listed, as grounds of appeal, the provisions of sections 413(1)(c) and 413(1)(b)(iii) of the Criminal Code, in that order.

These provisions contained the enabling provision of law that allowed the Attorney General to appeal from a judgment and the ground that the court could not have imposed a suspended sentence.

The Court of Criminal Appeal had, in its judgment, entered into the merits of whether the Attorney General had in fact renounced to all grounds of appeal.

However, the First Hall of the Civil Court noted that if one considered the order in which the Attorney General had listed his grounds of appeal, then it was obvious that the Attorney General had withdrawn the grounds as listed in section 413(1)(c) of the Criminal Code.

The Court of Criminal Appeal had concluded in its judgment that the Attorney General had no right of appeal on the grounds listed in section 413(1)(b)(iii) and could not lodge an appeal on this basis.

The First Hall of the Civil Court declared that while not every procedural error constituted a violation of the right to a fair hearing, there was such a violation if the accused was placed under a disadvantage in presenting his defence.

In this case Mr Grech had been disadvantaged and the court concluded that his fundamental human right to a fair hearing had been violated.

The court ordered the revocation of the judgment of the Court of Criminal Appeal and ordered that Mr Grech was to be placed in the same situation as that pertaining after the Court of Magistrates had delivered its judgment.

The Attorney General, the Registrar of Court and the Police Commissioner appealed from this judgment to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

In its judgment the Constitutional Court said it agreed with submissions made by appellants to the effect that the constitutional proceedings filed by Mr Grech ought not to be used as a second appeal from the judgment of the Court of Criminal Appeal.

All that the first court was to establish was whether Mr Grech had been given a fair hearing by the Court of Criminal Appeal and not whether that appellate court had accurately applied the law.

The Constitutional Court agreed that had the appeal filed by the Attorney General to the Court of Criminal Appeal been drafted with more diligence, the complications that later arose in the criminal proceedings against Mr Grech would not have arisen. This did not of itself give rise to a violation of Mr Grech's fundamental human rights.

It clearly resulted, the Constitutional Court noted, that the Attorney General's appeal to the Court of Criminal Appeal had contained two grounds of appeal and that one of these grounds had been withdrawn.

However, at that stage Mr Grech had continued to insist that there was only one ground of appeal and had not made his submissions on the merits of the ground of appeal that was still to be decided upon by the court. The Court of Criminal Appeal had given Mr Grech the opportunity to make his submissions on this issue and there was no allegation made to the effect that such court had impeded Mr Grech in any manner.

The First Hall of the Civil Court had, in its judgment, found that the Court of Criminal Appeal had made an error when it had inverted the first and second grounds of appeal. Even if this were the case, this error did not lead to a violation of the right to a fair hearing.

The Constitutional Court added that it did not believe that there was any error.

The Constitutional Court therefore overturned the judgment of the First Hall of the Civil Court and ordered Mr Grech to be re-arrested.

The court, however, ordered that the costs of the litigation be shared equally between Mr Grech and the Attorney General as it found that this incident could have been avoided had the Attorney General worked with more attention.