By ensuring the proper administration of justice, fair trials constitute an indispensable part of a democratic society.

While on the one hand, fair trials ensure that the defendant’s guilt or innocence is determined fairly, on the other hand, from the victim’s perspective, fair trials allow victims of crimes to believe that their rights are being safeguarded and that eventually justice will prevail. This is of utmost relevance particularly after taking into account that several statistics reveal that the number of people directly afflicted by crime is on the rise.

Both Article 39 of the Constitution of Malta as well as Article 6 of the European Convention of Human Rights pronounce guarantees, which are diverse but emanate from one fundamental right – the right for each and every individual to be afforded a fair hearing.

While international human rights law defines the notion of fair trial as a collection of procedural guarantees the defendant is entitled to, the question for those who deal with victims of crime rests on whether there exists an equivalent right or collection of rights for victims.

Even though some may argue that such rights are secured by the Victims of Crime Act as well as by the Maltese Criminal Code, a new issue may crop up in a scenario where the rights afforded by the said legislative instruments are not provided.

In such a case, would it be possible for the victim of crime to institute constitutional proceedings on the basis of his right of fair hearing as crystallised by the Maltese Constitution and the European Convention of Human Rights?

This question was the bone of contention in a case heard before the Constitutional Court decided on September 27, in the names of ‘Carmel Aquilina vs Il-Kummissarju tal-Pulizija u l-Avukat Ġenerali’ (83/2018).

It is worth mentioning that the provisions guaranteeing the right of fair hearing as protected by the principal legislative instruments were not specifically intended to safeguard the rights of victims of crime. In fact, there are limited judgments of the European Court of Human Rights regarding the victim. Nevertheless, when looking at more recent judgments of the European Court of Human Rights, one could easily note a deviation from the said court in the way such a right is being interpreted in order to broaden the security granted under the European Convention to victims of crime.

The question for those who deal with victims of crime rests on whether there exists an equivalent right or collection of rights for victims

The facts of the aforementioned case are relatively straightforward. Back in 2009, the plaintiff reported at the police general headquarters, complaining that his business partner and a third party had defrauded him. Subsequently, the police instituted criminal proceedings in this regard.

After nine years, the Court of Magistrates declared that, on the basis of the evidence brought forward by the prosecution, the accused could not be found guilty of the charges brought against them and they were consequently acquitted.

Carmel Aquilina instituted constitutional proceedings before the Civil Court, First Hall, in its Constitutional Jurisdiction, basing his application on his right of fair hearing under the Maltese Constitution and the European Convention of Human Rights while arguing that the police have failed to investigate and prosecute his complaint efficiently.

Aquilina contended that the Maltese Criminal Code created a procedural imbalance in light of the fact that whereas the accused in criminal proceedings had the right to appeal from the judgment of the first court; the complainant is not afforded this right.

Both the Attorney General and the Commissioner of Police asserted that Aquilina, being an alleged victim of crime, lacked the necessary juridical interest to institute such an action and, consequently, could not base his constitutional application on the right of fair hearing.

As a matter of fact, it was argued that Aquilina was neither the accused nor a suspected person and, therefore, the right of fair hearing was not applicable in this matter. The Civil Court, First Hall agreed with the arguments brought forward by the Attorney General and the Commissioner of the Police and declared that the plaintiff, as the alleged victim, lacked the necessary juridical interest to make such a claim.

Aquilina appealed before the Constitutional Court, contending that although he was not the accused in the criminal proceedings, but rather the victim, the right of having a fair trial was still applicable to him considering that upon a finding of guilty, the Court of Magistrates could have ordered the offenders to pay such damages for injury or compensation for the loss suffered by him.

The Constitutional Court, in its precise observations, while distinguishing between the right of fair hearing as provided by the Maltese Constitution and that guaranteed under the European Convention of Human Rights, noted that the legal position of the victim in criminal proceedings may be governed by the guarantees by the Convention only when the victim’s involvement in the criminal proceedings is connected to the determination of his civil rights.

Contrastingly, the right of fair trial as safeguarded by the Maltese Constitution was broader in nature.

For these reasons, the Constitutional Court concluded that in view of the fact that, through the criminal proceedings, Aquilina could have been compensated for the damages suffered, the victim had the necessary juridical interest to institute proceedings on the basis of the Maltese Constitution, rather than on the European Convention of Human Rights and thus sent the acts of the case back to the Civil Court, First Hall in its Constitutional Jurisdiction for the case to be determined according to law.

Dr René Darmanin is a junior associate at Azzopardi, Borg & Abela Advocates.