The right to a fair hearing is a fundamental human right enshrined both in the European Convention on Human Rights (‘ECHR’) as well as the Maltese Constitution; however, there are some scenarios where this right is not applicable, as demonstrated by the case Alfred Grech vs the Attorney General et decided by the Constitutional Court on December 2, 2024.
Plaintiff lodged an appeal in virtue of a judgment which did not find a violation of the right to a fair hearing with regards to proceedings under Article 541 of the Criminal Code. This article allows an individual to file an application to the Magistrates Court when the police refuse to take court action after they are handed information or a report is made to them. In the so-called 'challenge proceedings' the court is asked to decide whether there was sufficient evidence to warrant a police investigation into the alleged reported crime.
The facts of the case were as follows:
Anthony Xuereb had filed a complaint against two private individuals, Helen Milligan and Alfred Grech. The police decided not to pursue criminal charges against Grech but initiated proceedings against Milligan. Subsequently, notwithstanding the fact that both the police and the attorney general agreed that proceedings should not be instituted against Grech, Xuereb challenged this decision under Article 541 of the Criminal Code, which gave rise to judicial review. The Criminal Court consequently decided that the police should initiate proceedings against Grech.
Grech in the constitutional proceedings argued that the judicial review under Article 541 violated his fundamental human right to a fair hearing under Article 39 of the Constitution of Malta and the corresponding Article 6 of the ECHR. He argued that this violation occurred since he was denied the opportunity to participate in the challenge proceedings which directly affected him, and that the absence of recorded oral submissions further undermined this right.
The First Hall of the Civil Court, on 28th October 2022, decided that Grech’s rights were not violated and added that the judicial review in question did not involve any determination of his guilt or innocence, but it merely determined whether the police should institute proceedings on the basis of the report, information or complaint. Therefore, such proceedings reviewed decisions of the police not to prosecute. Consequently, an individual could not expect that his proceedings in court occur before an actual trial took place; his rights remained safeguarded since the moment the police act on a judgment ordering them to investigate an individual, all of the individual’s legal rights apply and he may benefit from them. Furthermore, it held that the proceedings were foreseeable and predictable and that they did not prejudice Grech’s eventual defence.
Subsequently, Grech appealed arguing that proceedings under Article 541 required the applicability of the protections provided under Article 6 of the ECHR and Article 39 of the Constitution.
The first plea made by Grech before the Constitutional Court regarded the applicability of the right to a fair hearing to proceedings under Article 541 of the Criminal Code. The Constitutional Court, presided by Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo, and Mr Justice Anthony Ellul, confirmed that proceedings under the said article are of an administrative nature and as such they do not determine criminal guilt or innocence. Moreover, the court reiterated that such proceedings act as a judicial review of the police’s discretion and that they are aimed at assessing whether there is a prima facie (at face value) case for prosecution.
Consequently, the Constitutional Court decided that Article 6 of the ECHR and Article 39 of the Constitution were not applicable since no criminal charge was determined at that stage.
The second plea claimed by Grech concerned the lack of recorded oral submissions which undermined his right to a fair hearing. The court stated that the judgment of the court of first instance made it evident that it acknowledged the parties’ note of submissions as well as the oral pleadings which took place before it. The court declared that although submissions were not recorded, the parties had the opportunity to present their submissions both in writing as well as orally.
In delivering its judgment, the Constitutional Court pointed out that a fair hearing presupposes equality of arms between the parties, meaning that no party should be placed at a substantial disadvantage compared to the opposing party. However, the court found that the appellant was not placed at a substantial disadvantage vis-à-vis his opponent. Consequently, the absence of a recording was not deemed sufficient to conclude that appellant’s right to a fair trial was violated.
The third plea centred on the appellant’s exclusion from the judicial review proceedings initiated by Xuereb. The court stated that similarly to previous court cases on the same subject, the appellant was aware of the proceedings and he was present during the sitting but he chose to intervene only after the appeal from the Court of Magistrates’ judgment was delivered. The court consequently decided that this plea was not justified.
In light of the above considerations, the Constitutional Court dismissed the appellant’s appeal by declaring that the protections afforded under Article 6 of the ECHR and Article 39 of the Constitution did not apply to proceedings reviewing the police’s discretion. However, the court also noted that while an individual does not have a legal right to participate in challenge proceedings, if this were to be allowed it would be of no harm.
This judgment is final and may not be appealed further.
Dr Arthur Azzopardi is Managing Partner, and Alizée Micallef is Paralegal at AB&A Advocates.