The Attorney General’s “unjustified” and “capricious” delay in issuing a bill of indictment against a man facing drug-related charges, gave rise to a “surreal” situation and €10,000 in moral damages for breaching the accused’s fundamental rights.
It was only when Mohamed Kourouma’s lawyers filed constitutional proceedings to challenge the AG’s inaction that the state prosecutor appeared to be finally jolted “back to its senses”, hurriedly rushing to present the bill of indictment within the month.
But the 10-year delay, which “by no stretch of the imagination” could be attributed to the complexity of the case, resulted in a violation of Kourouma’s fundamental right to a fair hearing, leading to a scathing judgment by the First Hall, Civil Court in its constitutional jurisdiction, presided over by Madam Justice Joanne Vella Cuschieri.
Kourouma was first arraigned on April 1, 2009 and was denied bail.
He spent some three-and-a-half years in preventive custody since he lacked the necessary funds to pay his bail bond and has since then been subjected to a blanket freeze over his assets.
For the first four years following his arraignment, criminal proceedings went ahead smoothly, with the prosecution regularly presenting its evidence.
But after August 28, 2013, despite almost fortnightly hearings, no progress was registered.
Although the prosecution declared over and over that it had no further evidence to produce, the AG kept filing notes saying that it needed more time to issue the bill of indictment and asking the prosecutors to declare whether they had further evidence.
More than 80 such notes were filed, Madam Justice Vella Cuschieri attested in the case file.
The case dragged on for over nine years, changing hands between three different magistrates. That change, however, did not really affect the proceedings, observed the judge.
Since criminal charges were filed, there were 150 hearings but progress was only registered because of the accused’s fault only in five.
The case was “at a standstill without any valid reason” giving rise to a “surreal situation that induced one to tears”, observed the judge.
The AG had “clearly failed to do its work”, availing itself of the referrals system back and forth between the court and its office “for no other purpose than to gain time in its favour”.
And in the meantime, expenses also piled up considering the fact that there was a court interpreter at every hearing.
The sorry situation had been flagged to the AG by the criminal courts and Kourouma’s lawyers, but the AG did not budge.
It was only when the accused took his grievances before the constitutional courts that the AG’s office finally “recovered its senses” and rushed to file the bill of indictment dated November 30, 2022.
Considering that final move, the applicant’s second request for the constitutional court to strike off the criminal proceedings was not upheld, the judge deeming it more appropriate to award moral damages for the blatant breach of rights.
The court declared that Kourouma’s right to a fair hearing within a reasonable time had been violated and awarded him €10,000 in moral damages, plus interest until payment was affected “so as to make sure that the unjustified delay was not repeated even when it came to settling the compensation as ordered”.
That sum was to be paid by the AG.
Lawyers José Herrera and David Camilleri assisted the applicant.