Court blames prosecution for desertion of case

The Constitutional Court yesterday revoked the reappointment of a case and declared it deserted, after the prosecution failed to act diligently in the conduct of the proceedings.

The Constitutional Court yesterday revoked a decree of reappointment of a case and declared it as having been deserted after the prosecution’s “culpable inactivity” amply exceeded the time allowed by law.

Gernot Knoess and M. Architecture Limited filed a Constitutional appeal, against the Attorney General, the Commissioner of Police and the Registrar of Courts, claiming that their rights for a fair and expedite hearing were violated after the Civil Court rejected their motion to declare a case deserted.

The prosecution in the criminal case failed to appear for the first two sittings and on 26 October 2010 the Court adjourned the case sine die.

However on 2 November 2010, the prosecution filed an application for the reappointment of the case. The Court decreed that it will reappoint the case only after the prosecution filed affidavits of their evidence. But it was only on the 28 January 2013 – more than two years later – that the condition was satisfied and subsequently the case was set for hearing on the 14 February 2013.

Gernot Knoess and M. Architecture Limited requested the Civil Court to revoke the re-appointment of the case and declare the case deserted. However the Civil Court rejected their application, and the applicants sought redress at the Constitutional Court.

In its judgment, delivered yesterday, the Constitutional Court said the desertion of the case was not being invoked over the prosecution’s failure of to close written proceedings within the peremptory times established by law; but because a case set down for hearing and then adjourned to an unspecified date, shall be deemed deserted unless it is re-appointed for hearing within six months of it having been so adjourned.

This provision however does not apply if the application is rejected due to valid reasons; in which case the applicant will have to file a new, correct, application within the original six-month period.

“If it were otherwise, the mere filing of an ill-founded application will suspend the desertion indefinitely, which is absurd and was certainly not the intention of the legislator,” the court said.

Mr Justice Giannino Caruana Demajo, and judges Noel Cuschieri and Joseph Zammit McKeon decreed there is no doubt that the prosecution failed to act diligently in the conduct of the proceedings.

“This lack of diligence is apparent throughout: they failed to appear for the hearing of the case; they allowed more than two years to lapse before filing their evidence by affidavit; they even failed to reply to appellants’ application of appeal”.

The court said that it was repeatedly observed that, while the conduct of the parties was relevant in assessing the State’s responsibility for unreasonably long judicial proceedings, it is also the duty of the court to ensure that, notwithstanding the casual attitude of the parties, proceedings are conducted expeditiously, and to use all  means allowed by law for that end.

“Indulging parties who take a cavalier attitude towards the proceedings is not conducive to a proper conduct of those proceedings. The institute of desertion is a strong disincentive to carelessness and nonchalance should not be rendered ineffective through a too accommodating interpretation,” the court stated.

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