The compilation of evidence against a man has been going on for 18 years – and the prosecution had not yet concluded its evidence stage, prompting a constitutional court to declare that his right to a fair hearing within a reasonable time had been breached.
Since 2005, there have been 136 sittings and 21 witnesses testified, while the case had been adjourned 25 times on account of the prosecution, 10 times on account of the defence and another 10 times by the Court, presided over by three different Magistrates, two of whom had since been elevated to Judges.
Angelo Zahra was first arrested in 2001 and was granted bail while the compilation proceedings over drug-related charges continued in his regard, with his assets subjected to a freezing order.
However, the compilation came to a standstill when five of the prosecution witnesses, facing separate criminal proceedings, were unable to testify on account of possible self-incrimination.
As the situation dragged on, defence lawyer Joseph Giglio requested a constitutional reference for the First Hall, Civil Court to determine whether the accused was effectively suffering a breach of his right to a fair hearing within a reasonable time.
The request for a reference was upheld by the Magistrates’ Court presiding over the compilation, landing the issue before the superior court where the Attorney General countered that the applicant could not complain about delays when his own request was a cause for further delay.
Besides, those five witnesses had a right to refuse to testify, just as the prosecution had a right to insist upon their testimony, the court was told.
When delivering judgment the Court, presided over by Mr Justice Mark Chetcuti, produced a breakdown of all the sittings held over a 14-year span, excluding the court minutes between 2001 and 2005 which went missing when the records of the case had been damaged in a fire.
In fact, the acts of the case had to be reconstructed from scratch, the Court observed.
However, in “18 years the prosecution had not declared its evidence stage as closed,” the Court said.
“It was unacceptable under the rule of law that 18 years after the arrest of the accused, the prosecution had still to conclude its evidence stage….no matter how indispensable its witnesses,” the Court observed.
There was no absolute term nor any singular determining factor to assess whether the duration of proceedings was reasonable or not, the Court explained, adding that all circumstances of the case had to be taken into consideration.
In this case, the principle though not sole reason for the delay was the prosecution’s insistence on the testimony of the five witnesses, the Court said.
“The State is bound to ensure that the judiciary delivers justice within a reasonable time and that the constitutional and conventional rights of the parties are not breached.”
In the light of the direction requested in the reference, the Court declared that the accused’s rights had been breached and ordered the records to be sent back to the Magistrates’ Court for proceedings to continue, urging the prosecution to draw the curtain on its evidence stage.
The Court refrained from granting a remedy since no request for this had been included in the reference.
Lawyers Joseph Giglio and Sarah Mifsud assisted the applicant.
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