Judge critical of decision to refer case to constitutional court without hearing evidence

A judge has criticised a court’s decision to uphold a constitutional reference before it even heard evidence and sent the case back to the magistrate.

The case concerns a Libyan man who was interrogated without an interpreter present. The judge has said the magistrate had to first hear evidence as to whether the accused spoke Maltese or not before referring the matter to the constitutional court on the request of the defence lawyer.

Miloud Elforjani, 40, was arraigned in 2019, accused of damaging property belonging to his employers, telling police that he had resorted to this after not getting paid for his work. During his arraignment, Elforjani, at the time a legal resident of Malta for four years, had pleaded not guilty to charges of having caused €4,620 in damages to his employers’ cars. 

Elforjani had signed several declarations written in Maltese, amongst them a declaration that he understood the language and another refusing legal assistance during questioning. As the Libyan had not been assisted by an interpreter during his interrogation, the man’s lawyer Daniel Attard had later filed an application requesting a constitutional reference in October 2021, arguing that the man’s rights had been breached by this fact. 

Last February, the Court of Magistrates as a Court of Criminal Judicature presided by magistrate Caroline Farrugia Frendo had upheld the request and referred the matter to the First Hall of the Civil Court in its Constitutional jurisdiction.

The Attorney General, the Commissioner of Police and the State Advocate had criticised the way the reference had been drafted, submitting that it cited an article of the Constitution which was inapplicable to the case.

Mr. Justice Christian Falzon Scerri handed down his decision on the matter when the case was called on Monday. In a judgement citing local, EU and UK case law dealing with similar situations, the judge criticised the Court of Magistrates as being too quick to uphold the defence’s request for a Constitutional reference. 

“Surely and not perhaps, Miloud Elforjani’s lawyer’s allegation alone made in his request for a Constitutional reference is not proof in and of itself that Elforjani doesn’t speak or understand Maltese. It is therefore up to the referring court to consider, after hearing evidence,  whether Elforjani was capable of speaking or understanding Maltese at the time of his interrogation.”

The judge ruled that if the man was capable of communicating in the Maltese language at the time, there was no breach of his rights and if he was not, there could be a breach.

The case was sent back to the lower court to decide, after hearing evidence, on whether or not Elforjani was able to understand Maltese at the time of his interrogation.

The judge did not order the parties to pay the costs of the case, remarking that the court should not have upheld the Constitutional reference without first ascertaining whether the man could speak the language or not.

Lawyer Daniel Attard represented Elforjani in the proceedings. Lawyer Julian Farruga appeared for the State Advocate, Attorney General and Commissioner of Police.