Litigants should make use of every remedy available to ensure justice

By Jodie Darmanin

Justice delayed is justice denied. This axiom underscores the imperative of a timely judicial remedy, enshrined both in the Constitution and the European Convention on Human Rights, which mandate that individuals are entitled to a fair hearing within a reasonable timeframe.

Nevertheless, it is imperative for litigants to ensure that legal proceedings are not needlessly protracted by their actions or oversights. In the recent case of Mark Micallef vs The State Advocate, the plaintiff contended that his fundamental human rights were transgressed due to an inordinate delay of 18 years.

Mr Micallef was sued to pay a sum which he owed in virtue of a private writing in 2002. The Case was definitely decided in 2020, wherein he had incurred up to €50,000 in legal interests, as well as damages suffered due to the fact that his bank account was frozen by the plaintiff in that case. Mr Micallef filed a constitutional case before the First Hall of the Civil Court in its constitutional jurisdiction, where he was awarded €35,432 in damages. The State Advocate appealed before the Constitutional Court arguing that no human rights violation had subsisted and that the quantum of damages awarded to Mr Micallef was too high.

The Constitutional Court found that such a delay was unjustified and amounted to a breach of fundamental human rights, agreeing with the Civil Court. Notably, the Constitutional Court concurred that such a prolonged delay, particularly in a matter stemming from a straightforward private agreement, constituted a flagrant violation of the right to timely justice.

The State Advocate contended that the State could not be held liable for the delay, given that the plaintiff had not exhausted all avenues to expedite the proceedings. Reference was made to Article 195(5)(b) of the Code of Organisation and Civil Procedure, which permits a party to petition the Chief Justice to reassign the case to a different judge if it surpasses 18 months. However, the Constitutional Court reasoned that the primary responsibility for ensuring timely justice lies with the Court System, and the plaintiff's failure to invoke this provision could not absolve the State of its obligations. Nonetheless, the Court acknowledged the plaintiff's inaction in seeking reassignment as a mitigating factor in determining damages incurred.

Furthermore, in assessing the compensation owed to Mr Micallef, the Constitutional Court considered various factors which reduce the amount of damages suffered. It accounted for the fact that notwithstanding that his bank account was frozen, interest at 2% per annum accrued on the sum owed during the lengthy litigation period. The Court further adjusted for inflation by referencing the cost of living index found in the Housing (Decontrol) Ordinance. The Constitutional Court further tempered the compensation on the grounds that the case pertained to civil matters rather than criminal ones, and thus of a less serious nature. The Constitutional Court notwithstanding the fact that it found the State responsible for the delay, it reduced the amount of compensation payable to Mr Micallef to €4,000 along with the payment of three fourths of the expenses incurred to file the constitutional case.

Notwithstanding that the State is obliged and legally responsible to ensure that justice is served within a reasonable time, the parties to a case cannot sleep over their rights at law and must take all the necessary steps to actively pursue the case to ensure that a remedy is brought in a timely manner.

Moreover, in calculating the amount of damages incurred by a victim of untimely court proceedings, the Constitutional Court will take into consideration various factors to calculate an actual loss incurred due to the protraction of a case.