A Constitutional Court presided over by Judge Anna Felice has upheld a request for a sentence handed down by the court of magistrates to be declared null following claims by the defence saying that  there was clear breach of proper hearing.

The complaint was filed before the Constitutional Court by the lawyers representing Christopher Cassar, a man from Zabbar who was found guilty of trafficking and possessing heroin on and before August 2004, as well as of committing these crimes within 100 metres from a school or a venue frequented by children. He was also sentenced for breaching the conditions of bail granted by the courts. 

Magistrate Padovani jailed Cassar for two years, less the time he had spent in preventive arrest, and fined him Lm1,000. Moreover, she converted the two-year suspended jail sentence handed down in 2001 into an effective jail term. This sentence was given to him on June 2007.

Now, the defence lawyers appearing for Cassar have filed a constitutional case against the police commissioner, the Attorney General and the Prime Minister claiming breach of fundamental human rights. The issue emerged as the prosecution, led by police inspector Dennis Theuma, had allegedly filed a submission to be included in the case file without notifying the defence. They are arguing that, given the fact that they were never notified of this submission, the defence was not provided with the opportunity to prepare arguments against the prosecution and rebut the claims made by the prosecution.

Defence lawyers are claiming that this constitutes a clear breach of a fair trial and proper hearing, thus goes against one of the fundamental human rights established by the European Court of Human Rights.

The defence is also questioning the validity of the testimony brought forward in the case against Cassar. They argued that the two principle witnesses brought forward were to individuals who were drug addicts, had bought substances from the accused and were helping the police so that the prosecution treats them in a more lenient way.

With these arguments brought forward, the defence lawyers appearing for Cassar said that the court should declare that the lack of proper notification from the prosecution to the defence, has withheld the accused from having a proper hearing. The court was also asked to declare that the way the court of magistrates had found the man guilty, goes against human rights.

On the other hand, the AG and the Prime Minister argued that, given they are not the legitimate contradictors in the case, they should be liberated. They also argued that the plaintiff had all the opportunity to use 'ordinary' legal means to seek justice and remedy.

The Attorney General also remarked that the submission by the prosecution in question, was filed on May of 2006 and the sentence was only handed on June 2007. "The defence had more than the time necessary to counter this issue," it said.

In its decision, the first hall of civil court in its constitutional jurisdiction, upheld the first request by the defence and as a remedy; the court declared the sentence handed to Cassar by the court of magistrates in 2007 as null. The case will be re-submitted before the court of magistrates.