Courts do not need to quote every document in its judgements

On 28 April 2014, the Constitutional Court delivered a judgement in the names Jovica Kolakovic v Attorney General, after the applicant asked to have a retrial under article 811(i) of the Code of Organisation and Civil Procedure since, in its judgement of 12 November 2012, Mr Kolakovic held that the judgement was effected by an error.

The background of the case concerned criminal proceedings against Kolakovic. He had released two statements to the police and after was arraigned in court. His lawyer had made informal requests for telephone data from the UK. A formal request to the Criminal Court was submitted for letters rogatory in terms of Article 399 of the Criminal Court. A number of corrections were made by the defence for these letters rogatory. 

However by the time the correct letters rogatory were delivered to the UK Central Authority, the period for which the data is kept had elapsed and therefore lost. The applicant held that this data was vital for his defence and that the Attorney General (AG) was passive and allowed this situation. This was in breach of his human rights for a fair hearing.

The Constitutional Court had held in that judgement that the letters of request took too much time to be sent and attributed this to the defence

However, Kolakovic submitted, the Constitutional Court, in its judgement of 12 November 2012, made no reference in its judgement to a decree of 24 August 2010 given by the Criminal Court. This decree was vital evidence to support the applicant’s claim that his human rights were violated. 

The Constitutional Court had held in that judgement that the letters of request took too much time to be sent and attributed this to the defence. However the applicant claimed that it is the AG that made no effort to ensure the expediency of this procedure. Once the decree was not mentioned in the judgement of the Constitutional Court, Kolakovic claimed that the court did not consider it and therefore made an error of fact.

The AG held that the Court is not duty-bound to mention the decree in the judgement and from the records of the case, it is clear that the Court took this decree in consideration.

The Constitutional Court presided by Justice Giannino Caruana Demajo, together with Justice Noel Cuschieri and Justice Joseph Zammit Mc Keon, held that Article 811(i) of the Code of Organisation and Civil Procedure allowed for a retrial “where the judgement was the effect of an error reselling from proceedings or documents of the cause”. 

The same court quoted from a previous judgement, Joseph Grech v Joseph Bowman, which listed the elements of this ground of retrial. These are that the error must be material, result from the records from the case, the error must be manifest, and crucial for the decision taken by the judge.

The court agreed with the AG’s position that the Court is not bound to quote from every document found in the records of the case, especially if voluminous. The Court also held that from the judgement delivered, it was reasonable to conclude that the decree of 24 August 2010 was examined. However, the Court went further in that the crucial point that the delay in the transmission of letters rogatory to the UK was not due to any fault of the AG but was attributable to the applicant. The court listed the number of requests for corrections.

The court proceeded to conclude the case by rejecting the request for a retrial.

Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Associates