The Constitutional Court dismissed an appeal filed by Sandro Chetcuti and James Barbara and confirmed the conclusions reached by the First Hall of the Civil Court that their fundamental human right to a fair hearing had not been violated.

The court was composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

Mr Chetcuti and Mr Barbara had claimed that their right to a fair hearing had been violated because the magistrate hearing a court case they had filed was the same who had previously dismissed two applications filed by them for the issue of a warrant of prohibitory injunction.

They said they had entered into a preliminary agreement whereby they were to buy land in Gozo from George, Loreta and Joseph Galea. Subsequently the parties had not agreed on the interpretation of the preliminary agreement and applicants had requested the Gozo court to issue a warrant of prohibitory injunction against the Galeas to prevent them from selling the land to third parties.

The Gozo court had dismissed both this application for a warrant of prohibitory injunction as well as a subsequent similar application filed shortly afterwards.

The presiding magistrate in Gozo had ruled that it did not result, on a prima facie basis, that Mr Chetcuti and Mr Barbara had any rights that required protection by the issue of the warrant.

The applicants had then filed a writ in the Gozo court asking the court to declare that the preliminary agreement was still valid and to order the Galeas not to sell or transfer the land in question.

The case was assigned, according to the roster, to the same magistrate who had dismissed the requests for a warrant of prohibitory injunction.

The applicants had requested the magistrate to abstain from hearing the case but this request was dismissed on the basis that this was not a valid ground for abstention at law.

The applicants then filed a constitutional application in the First Hall of the Civil Court claiming that their right to a fair hearing had been violated.

After their constitutional application was dismissed, Mr Chetcuti and Mr Barbara filed an appeal to the Constitutional Court.

They claimed that there was a lack of objective impartiality on the part of the magistrate assigned to hear their case as their requests for a warrant of prohibitory injunction and the court case filed against the Galeas were identical.

According to the applicants, the presiding magistrate had already expressed an opinion on the merits of the case when he had dismissed the request for the issue of the warrant.

Quoting from judgments of the European Court of Human Rights, the Constitutional Court declared that when the first decision of a judge involved only prima facie examination of evidence, this did not mean that the judge was not objectively impartial when he gave a ruling on the merits of the case.

However, the foreign case law also established that in order to reach a conclusion on this issue, an analysis had to be made of the nature and scope of the proceedings for the issue of a warrant of prohibitory injunction.

The law governing this warrant prevented the irrevocable violation of some right that the applicant for the warrant appeared to have on a prima facie basis. This did not mean, the Constitutional Court noted, that if the warrant was issued then the vaunted right was proven to exist. It was for this reason that the procedure for the issue of the warrant was of a summary nature.

There was a distinction between an examination of evidence on a prima facie basis and a full examination of the evidence produced in the merits of the case.

The criteria used by a judge when examining a request for the warrant were different to those used when deciding on the merits of a case. Consequently, the simple fact that a judge had delivered a ruling on a request for the issue of the warrant of prohibitory injunction did not justify any worries about his impartiality when it came to deciding the case on the merits.

The Constitutional Court therefore dismissed the appeal and confirmed the judgment delivered by the court of first instance.