I refer to recent media reports that a man was awarded €10,000 and costs by the European Court of Human Rights for the findings of a denial of a fair trial.

Though I am completely extraneous to the case, my name was mentioned, leaving me no alternative but to make my comments on it; if, for no other reason, that I have been 65 years a lawyer, and have never seen anything like it, nor have my colleagues and members of the retired judiciary I socially met.

As the judgement is the work of the ECHR, which is the standard-bearer of human rights, it looks unique in the way it has discarded all the teachings of justice and the law, far away from the doctrine and relevant case law.

The raison d’être of the ECHR is to protect fundamental human rights and, if the court decided that the applicant merits a reward, it should have applied a financial figure either way at its discretion to fit the merits found, if this were the case, in fulfilment of its functions.

But it certainly has no right to advise proceedings prolonging the case which is already so very irregular in the eyes of the law, now 23 years old!

For there is no doubt about it, prolonging the issue is sadly against the rule of law, of which the ECHR is the primary advocate; holding, in its doctrine and case law, that avoidable delay makes a mockery of the law itself. If only for this cardinal principle, it should never have interfered with the local system, so blatantly against the Res Judicata established by our Court of Appeal; ab urbe condita, the ultimate destination of a case.

In the view of many lawyers, retired judges and chief justice, the judgement of the ECHR is null, certainly in its consideration for its findings. It goes against the Maltese laws of procedure and of the elementary basics of the ECHR itself; if anything, it is only the award that is correct, though the facts have been grossly misinterpreted.

Thus, it goes against the rule of law, in mysteriously prolonging the 23 years in a case already so rich in delay and human discontent. Moreover, its consideration is against the principle of audiatur altera pars in that it affects persons who are extraneous to the case; unbelievable but true – to the amazement of all judges.

Here, it expressly goes against Section 237 of the Maltese Code of Civil Procedure, which says, categorically: “A judgement shall not operate to the prejudice of any person who neither personally, nor through the person under whom he claims, nor through his lawful agent, was party to the cause determined by such judgement.”

The case merits a ministerial enquiry in the name of justice

This means that the judgement of the Maltese court regarding the merits of the case will never be affected by the result of its judgement of the case between the judgement debtor and the state over human rights before the ECHR.

As is well known in such controversies, the case was built on the principle of the konvinċiment morali of the sitting judge, and this first konvinċiment morali cannot be substituted by another konvinċiment morali. The sitting judge is obviously presumed to have studied and weighed all the circumstances of the case and seen eye to eye the person giving evidence. All the more reason why the Malta laws should suffer no interference.

In the circumstances, the judgement is an insult to our concept of the Res Judicata, which has always been considered as the final destination of a controversy; and I am told, and feel indeed, that the judiciary will consider it as a very dangerous precedent, if accepted, and will not allow it to become a mere stage of the proceedings.

The quoted case of the ‘Band Club vs Malta’ is totally different from this case. The consideration there was the inexistence of the tribunal, because of its lack of independence and impartiality. Here the judgement creditor and the judgement debtor have nothing in common.

What we have here is not only a totally absent judgement creditor, which speaks for itself, but also a seven-figure-euro-hold-up, death and serious injury on one part, and the doer on the other, who gave birth to the case – all won by the judgement creditor in five halls and now losing €20,000 per annum, because the offender lacks funds to satisfy the creditor’s award as given him by our Court of Appeal; the interest running to no avail, on paper only.

It is felt significant that the judgement did not say that, in the absence of the unfair hearing, the applicant would have won the case.

This definitely leaves free the thought that with or without the unfair hearing, the applicant would have lost the case as well – all this with a background that the court had decided that the evidence left “no doubt at all” – the richest level of certainty in existence – beyond “the balance of probabilities”, which in this case would suffice, and beyond the level of “without reasonable doubt”.

On a personal note I was not a party to the case before the European Court, not called, nor defended. Each point in the evidence was twisted, or misinterpreted, or completely inexistent. The Attorney General failed to reach the level of expectation in the defence of Malta, which strikes me as odd.

There were no inconsistencies, only careless studies of the file, if any; much invented. The defendant was mentioned with his brother to the police before sunrise on that day, so they gave evidence, as I did, saying that the “buckets of gold” as a guarantee were mentioned on the same day of the hold-up as well. Thirty circumstances with uniform inference all pointed to the defendant, and exclusively.

All this apart, it is felt that our courts cannot accept the judgement in its entirety, and the reason is clear. It is against the laws of Malta, too glaring to implement. All the retired judiciary I met socially were sure it should be so, with section 237 of our Code of Procedure being the most notable reason, even on its own, which militates against legal reception by Malta.

I was also told that the case merits a ministerial enquiry in the name of justice, at national level to see why this was allowed to happen. Our legal system seems very hurt.

Joe Zammit Tabona is a lawyer and the ‘poet of Mdina’.