Court declares Criminal Code exception to be unconstitutional

A judge has declared unconstitutional, a subsection of the Criminal Code that creates an exception to the accused’s right to cross-examine a witness when the witness cannot be found or is absent from Malta.

Madam justice Joanne Vella Cuschieri made the ruling on Thursday, in a case filed against the State Advocate by Osama Ebeid, a Palestinian man accused of complicity in the trafficking of a number of Chinese nationals who were abandoned in the waters between Malta and Sicily in March 2005. Six Chinese migrants had died as a result.

One of the survivors had identified Ebeid, leading to the Palestinian’s arrest.

Section 646 of the Maltese Criminal Code stipulates that witnesses shall always be examined in court and viva voce, before going on to list the exceptions to this rule. One such proviso applies when “it is apparent to the Court that appearing for viva voce examination may cause the witness to suffer psychological harm, or when the witness is dead, absent from Malta or cannot be found …”

Court messengers had been unable to find and summon the Chinese survivors to testify, telling the court that they were no longer in Malta. In view of this, the Prosecution had asked the court to follow an established practice in such cases, whereby the testimony gathered during the inquiry is read out instead of having the witnesses testify before it.

A major shortcoming to this procedure is that, in such cases, there is no opportunity for the witness to be cross-examined by the defence.

Ebeid’s lawyer Joe Brincat submitted that the discretion to accept testimony when cross-examination is impossible, as laid down in section 646 of the Criminal Code, was in breach of Article 39(6)(d) of the Constitution, the supreme law of the land. The lawyer asked the court to make a declaration to this effect.

In his reply, the State Advocate clarified that the inquiring magistrate, the late Joseph Apap Bologna, had travelled to Italy to hear the Chinese witnesses (who had been detained in separate proceedings there) testify as part of his inquiry. The inquiry was concluded before Ebeid was formally charged in court, said the State Advocate, but Ebeid was “certainly aware” of the exchange of letters rogatory between the Maltese and Italian authorities about the Chinese witnesses, and verbal notes to this effect had been dictated in the acts of the proceedings.

On the question of the constitutionality or otherwise of the legal dispositions at issue, the State Advocate had said that Section 646 had to be taken as a whole to be understood and not “superficially dissected” with sub-articles being taken out of context. He rebutted the assertion that Ebeid’s right to a fair trial was breached.

In her judgment on the matter, Madam Justice Vella Cuschieri observed that two sets of letters rogatory had been sent, one before the accused was charged and another in 2007, after Ebeid had been accused of human trafficking.

She noted that the previous court had examined whether the testimony given before the Italian courts was admissible in Maltese proceedings, or indeed even legally valid as they had not been confirmed under oath by the witnesses.

There was a “real possibility” that several of the Chinese witnesses, who had been granted temporary permission to stay in Italy years ago, would not be found. This would likely lead the Criminal Court to apply the legal exception allowing their statements to be read out to the jury trying the accused man, she said. “If this happens, then the applicant would not have the possibility of cross-examining the witnesses as provided, without any exception, under Article 39 of the Constitution.”

The judge said that there was no doubt that no other article in the Constitution provided an exception to this right to examine a prosecution witness before every court. Article 646(2) of the Criminal Code “without a doubt provides an exception to this rule, only in certain circumstances. Evidently, this exception is not sanctioned by article 39 of the Constitution and is therefore in violation of it.”

For that reason, the judge upheld the plaintiff’s request and declared the proviso to section 646 (2) of the Criminal Code to be in violation of the Constitution of Malta, whilst stressing, however, that it was not in violation of the European Convention on Human Rights.

As the court had found a breach of the Constitution in its decision, the judge ordered a copy of it to be delivered to the Speaker of the House, in order for the issue to be tabled in Parliament.