Appeal court's decision 'breached fundamental rights'

A man, whose appeal from a five-year jail term had been thrown out on procedural grounds because his name had been spelt with an extra "m", will have his appeal heard on the orders of a Constitutional Court.

Mr Justice Gino Camilleri, in the First Court of the Civil Courts in its Constitutional Jurisdiction, declared that the decision of the Court of Appeal - to throw out Emanuel Gauci's appeal over a spelling mistake - constituted a breach of his fundamental human rights.

"In the penal process the accused is to have an effective remedy to safeguard his rights... Procedural aspects are intended to ensure the just administration of justice. Therefore, procedural regulations and their application should not preclude the accused from having his appeal heard on the grounds of the merits of the case, which is an effective remedy to ensure that his rights are safeguarded," the judge ruled.

In a judgement handed down in October, 2005, the Magistrates' Court jailed Mr Gauci for five years and fined him Lm3,000 for importing 2.2 kilogrammes of cocaine from Canada into Malta on and before April 23, 2001.

Mr Gauci appealed his judgement on two grounds. First he claimed that the magistrate's judgment could not be executed because in the printed judgment, which he had obtained from the courts, he was referred to as "Emmanuel" when his name was "Emanuel", with one "m".

Secondly, the magistrate had reached a guilty judgment based on a wrong appreciation of the facts.

Mr Gauci had based his appeal - which he filed under "Emmanuel Gauci" - on the typed, official copy of the magistrate's judgment which was given to him when the judgment was handed down.

The Court of Appeal noted that two copies of the judgment, bearing the name "Emmanuel", were signed by both the court registrar and the magistrate.

However, the handwritten judgment, with the name "Emanuel", was also signed by the magistrate and, as he personally wrote it, it was to be deemed to be the original.

The Court of Appeal went on to add that after bringing up this ground of appeal Mr Gauci had fallen "between two stools".

This was because, having filed the appeal under the name "Emmanuel", the appeal was to be declared null as the appellant's name was "Emanuel" with one "m".

Mr Gauci then filed a constitutional application, against the Attorney General, claiming that the decision of the appeal court had been in breach of his rights.

"The draconian consequence which the Court of Appeal led to through its judgement... also led to the breach of his right to access a court which was an integral part of this right to fair hearing," Mr Gauci's lawyers claimed.

Apart from this, they added, the appeal court's conclusion that Mr Gauci's name was written with one "m" on the handwritten copy of the magistrate's judgement also meant that, when given a printed copy of the judgment (where his name was written with a double "m") he had not been given a faithful copy of the original. That too was in breach of his rights.

On evaluating the case Mr Justice Camilleri noted that Mr Gauci was faced with a situation where, because he tried to use a factual situation as a ground of appeal, his access to an appeal before the court was hindered. As a result his appeal was never heard on the grounds of the merits of the case.

Quoting case law, Mr Justice Camilleri added that everything was to be interpreted in the light of the rule of law and that procedural regulations and their application should not preclude a man from having his appeal heard on the grounds of the merits of the case.

The judge upheld the application filed by Mr Gauci and declared that the decision of the Court of Appeal was in breach of his fundamental human rights.

He revoked the judgment and ordered that his appeal be heard.

Lawyers Joseph Giglio, George Abela and Robert Abela appeared for Mr Gauci.