Court dismisses appeal over right to fair trial

The Constitutional Court yesterday confirmed a judgment that had dismissed a constitutional application filed by Godfrey Ellul against the Attorney General.

The court heard that Mr Ellul was charged before the Criminal Court with drug trafficking.

His complaint was based on the fact that section 22 of the Dangerous Drugs Ordinance gave discretionary powers to the Attorney General.

The Attorney General could arraign a person on charges of violation of the ordinance both before the Magistrates' Court and before the Criminal Court.

The penalty established by law varied according to which court heard the case.

According to Mr Ellul, this discretion on the part of the Attorney General was in violation of his right to a fair trial.

Mr Ellul also claimed that this was in violation of his right not to be subjected to a penalty when the facts with which he was charged did not constitute a crime at the time of the alleged commission of a crime.

He further alleged that he was being discriminated against.

The first court, however, dismissed his application.

Mr Ellul had been charged before a court established by law and it did not result that he had not been given a fair hearing or that the court was not independent or impartial.

Maltese case law established that there was no violation of the right to a fair hearing nor was there discrimination as a result of the discretionary powers granted by law to the Attorney General.

The court added that the facts with which Mr Ellul had been charged before the Criminal Court had certainly constituted a criminal offence in violation of Maltese law at the time of their commission.

Furthermore, the maximum penalty of life imprisonment which Mr Ellul could face had been in effect since 1996 while the crime with which he was charged had taken place in 1997.

Consequently, at no time had Mr Ellul been exposed to a penalty more severe than that which was in force at the time the alleged crime was committed.

In the context of Mr Ellul's claim of discrimination, the court, quoting extensively from case law of both the European and Maltese courts, declared that the concept of equality of treatment could not be understood in an absolute or mathematical sense divorced from the particular circumstances of the case.

There was, therefore, discrimination when two persons in identical situations were treated differently without there being an objective or reasonable base for such differentiation.

For Mr Ellul's case to be successful, he had to prove that the Attorney General had exercised the discretion given to him at law in an unreasonable or discriminatory manner in the sense that another accused person, in the same circumstances as Mr Ellul, had been treated differently.

The court said it was of the opinion that Mr Ellul had not produced such evidence.

In conclusion, the first court declared that Mr Ellul had requested a declaration that the law itself was discriminatory and not a declaration that he had been treated in a discriminatory manner.

The ordinance, the court ruled, was not discriminatory for the law itself provided for the discretion to be exercised according to law and Mr Ellul's application was, therefore, dismissed.

Mr Ellul had appealed to the Constitutional Court composed of Mr Justice Joseph D. Camilleri, Mr Justice Albert J. Magri and Mr Justice Giannino Caruana Demajo.

In yesterday's judgment, the appellate court said that the first court had correctly ruled that the right to a fair hearing concerned the manner in which judicial proceedings took place before a court, and not the manner in which a case was submitted before the courts.

An accused person was entitled to the same guarantees and to a fair hearing both before the Magistrates Court and the Criminal Court and Mr Ellul had failed to prove that he was deprived of such rights.

The European Convention did not contain a guarantee that the Attorney General could not exercise his discretion.

On appeal, the court found that the European Convention embodied the principle that only the law could define a crime and prescribe a penalty, and that any offence had to be clearly defined in law.

In Mr Ellul's case, the law had defined the elements of the crime at the time he had allegedly committed it. The Constitutional Court also dismissed Mr Ellul's appeal on the basis that he had been discriminated against. He had not produced any evidence to show that he had been treated differently from any other person in the same circumstances as himself.

The court dismissed Mr Ellul's appeal and confirmed the first court's judgment.