Is the absence of a prosecution witness from Malta tantamount to a breach of the accused’s right to a fair hearing?

Witnesses should always be examined in court and orally, subject to some exceptions. This is what Article 646 of our Criminal Code stipulates and was the matter of the Constitutional Court decision of June 22, in the names of Osama Ebeid vs the State Advocate (Rik. No. 276/21/1).

In 2018, Mr Ebeid, was charged with complicity in human trafficking. He had raised before the Criminal Court the argument that foreign witnesses that had testified during the inquiry stage via letters of request (letters rogatory) should be brought to testify orally before the Criminal Court. The legal question that arose related to the first proviso of sub-paragraph 2 of Article 646 of the Criminal code, which states:

“The deposition of witnesses, whether against or in favour of the person charged or accused, if taken on oath in the course of the inquiry according to law, shall be admissible as evidence:

Provided that the witness is also produced in Court to be examined viva voce [orally] as provided in subarticle (1) unless the witness is dead, absent from Malta or cannot be found and saving the provisions of subarticle (8)”

The accused complained that this proviso is incompatible with his right to a fair hearing (Article 39 (6) (d) of the Constitution) as he is being impeded from cross-examining a witness of the prosecution.

He also held that his right to a fair hearing is absolute and there should be no exception to this right. Consequently, Mr Ebeid requested the First Hall Civil Court (Constitutional Jurisdiction) to declare that the words “unless the witness is dead, absent from Malta or cannot be found” violates Article 39(6)(d) of the Constitution of Malta.

Article 39 (6) (d) of the Constitution of Malta states that every person who is charged with a criminal offence shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses subject to the payment of their reasonable expenses, and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

In its decision of 27th January 2022, the First Hall Civil Court (Constitutional Jurisdiction), upheld the request of the accused and declared that the first proviso in sub-article 2 of Article 646 of the Criminal Code, with respect to the part which reads: “unless the witness is dead, absent from Malta or cannot be found” violated Article 39(6) (d) of the Constitution of Malta and requested that its decision is communicated to the Hon. Speaker of the House of Representatives.

The State Advocate filed his appeal on 15th February 2022 and asked the Constitutional Court to revoke the sentence of the First Hall and reject the pleas of a breach of fair hearing made by the accused. In his appeal, the State Advocate complained that the argument raised by the accused in relation to fair hearing was untimely given that the criminal proceedings against him were not yet concluded. Therefore, the First Hall could have never been in a position to analyse such a plea before the conclusion of the criminal proceedings.

However, the Constitutional Court held that the accused was not lamenting about the interpretation and application of Article 646(2) of the Criminal Code with respect to his case, but was lamenting about the incompatability and unconstitutionality of the abovementioned proviso vis-a-vis Article 39(6)(d) of the Constitution of Malta.

Therefore, the Court held that this is not a case whereby it has to wait for the criminal proceedings to be concluded so that it can properly examine the proceedings in toto and determine whether the same proceedings violated the right to a fair hearing of the accused. Consequently, the Constitutional Court, discarded the State Advocate’s argument relating to untimelyness of the action.

The second argument raised by the State Advocate in its appeal related to the fact that the First Hall decided erroneously when it held that the first proviso of Article 646(2) of the Criminal Code violated Article 39(6)(d) of the Constitution of Malta. In his reasoning, the State Advocate held that although Article 646(1) of the Criminal Code states that witnesses should always be examined in Court and viva voce, however, this is subject to a number of exceptions in Article 646 of the Criminal Code.

The State Advocate went on to stay that the Criminal Code already provides for the “facilities” required under Article 39(6)(d) of the Constitution of Malta which allows the accused to conduct cross-examination. In fact, the State Advocate mentioned the effects of Article 647A of the Criminal Code whereby the law allows the possibility to record a witness on audio or audio-visual means, and allows that a witness is given via video-conference or teleconference.

On this basis the State Advocate argued that the same proviso that the First Hall had declared unconstitutional, should not be interpreted as to say that the cross-examination of a witness, who does not reside in Malta, cannot take place. However, it should be read as to say that the testimony of such a witness could be gathered in any one of the ways mentioned above other than physically being examined viva voce in court.

Therefore, on this line of reasoning the First Hall should have never found that the first proviso of Article 646(2) breaches the Constitution of Malta.

On this particular point, the Constitutional Court held that Article 39(6)(d) of the Constitution of Malta, does not guarantee the accused’s right of cross-examining a witness, however, it ensures that the accused is afforded the facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance of witnesses subject to the payment of their reasonable expenses, and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

Therefore, this article does not guarantee a result (i.e. at all costs the accused should conduct the cross-examination of that particular witness) but this article is one of affording means to the accused (i.e. the accused is given the facilities to examine the witness under the same conditions applicable to witnesses brought by the prosecution).

In this regard, the Constitutional Court made reference to the decision of the European Court of Human Rights (ECtHR) in Strasbourg of 20th November 1989 in Kostovski v. Netherlands whereby the ECtHR held that:

“In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage in the proceedings”

With respect to Letters Rogatory, the court argued that the law permits the accused to submit additional questions to be made to the witness. Thus, the Constitutional Court held that the law affords different facilities so that the accused would be able to examine the witnesses of the prosecution.

Consequently, the Constitutional Court agreed with the line of argumentation put forward by the State Advocate and held that the first proviso of Article 646(2) of the Criminal Code is not incompatible with Article 39(6)(d) of the Constitution of Malta. Thus, the Constitutional Court revoked the decision of the First Hall Civil Court (Constitutional Jurisdiction).

Clive Gerada is an Associate at Azzopardi Borg and Associates.