State-sponsored maltreatment

I would never purport to comment in newspapers on a case which is sub judice. However, in this contribution I will inadvertently be hinting at the trial of a former client of mine who has now unfortunately passed away, a broken and traumatised middle-aged man, whose case will never be heard again before the courts.

Both our Constitution and the European Convention on Human Rights guarantee for an accused person a trial within a reasonable time. Thus, a trial that is prolonged indefinitely before the courts for no justification will never constitute a fair trial and, therefore, a person who is subjected to such treatment would have his fundamental human rights disregarded. This is a very serious matter indeed and makes a mockery of our judicial system.

Time and time again, our Constitutional Court has declared that this fundamental human right has been trampled upon. In such instances, the remedy granted has always been, traditionally, of a pecuniary nature.

What, however, must be seriously debated, even before the House of Representatives, is whether such a remedy can, in the circumstances, still be regarded as an effective remedy, especially if the judgment is delivered while the applicant is still serving his sentence.

A small amount given as financial compensation is a far cry from an effective and just remedy. In the case in question, that of the now late John Bugeja, the circumstances were perhaps even more grievous than previous cases. Here we had a case which dragged on before the courts for no apparent reason for almost 21 years.

The person was barely 18 when he committed the offences he had been charged with and when he was finally sentenced to six years imprisonment, he was almost 39, and had a family of six children. Surely, the judicial system blatantly failed in this particular case and I dare say that the bold decision delivered by the first court was the only conceivable and just remedy to give, that of ordering his immediate release.

Malta has had a Constitutional Court for many years now. Notwithstanding this, for the first half of the period of its existence, it failed to deliver. In fact, for almost 20 years, you could count the number of decisions delivered against the government on the palm of your hand.

This gave rise, justifiably, to general criticism in the sense that our courts were then not bold enough to take the plunge and act as the ultimate watchdog of the common citizens' inherent rights. I remember when I was still very young, even before my university days, what a tremendous uproar a Constitutional Court judgment in favour of a plaintiff would cause.

Thankfully, all this seems to be changing. Over the past 15 years, our supreme court has proved its worth somewhat and is being more liberal in its approach to constitutional matters. This is to the benefit of one and all.

On the other hand, however, the remedies being awarded still leave much to be desired. I would go further and state that at times the awards delivered seem disproportionate.

We have had cases where, for example, tens of thousands of liri were granted in cases which bore a strong political connotation. On the other hand, we have seen cases where the plaintiff would be a person of no important consequence and where the compensation given would be a pittance. This is wrong.

Our Constitutional Court was created to act as the supreme court of the land and therefore has all the powers necessary to serve as a sufficient deterrent against abuses in human rights. In this respect, however, our Constitutional Court still has a long way to go.

Going back to the issue over unwarranted delays, I feel it is now high time for parliament to intervene. It is clear that in too many instances our courts and our government are proving unable to guarantee our citizens a trial within a reasonable time.

Parliament should therefore follow norms adopted in other countries, such as Italy where the principle of speed in hearing a trial is of the essence. On account of this, therefore, prescription is not interrupted, not even when judicial proceedings are initiated.

This creates the necessary safeguards that at least the state will have to judge a person within a certain time-frame or else not judge him at all.

In Malta, a similar legal frame-work should be introduced whereby our courts would be given certain time-frames to conclude proceedings or else the accused would have to be set free. These time-frames could be extended in exceptional circumstances by a relative proclamation by the President but only when legal impediments exist that would prevent proceedings from being dealt with expeditiously.

If politicians fail to take political cognisance of this state of affairs, we would be giving a disservice to our citizens and perhaps allow the fate and respect that our courts deserve to be undermined. The Bugejas we have around us deserve better.