Judges

Joseph D. Camilleri

Joseph A. Filletti

Anton Depasquale

Constitutional Court

14 June 2006

Police

vs

Joseph Azzopardi &

Caroline Bianco

This case concerned an appeal to the Constitutional Court alleging a breach of the fundamental human right to the presumption of innocence till proven guilty protected by the Maltese Constitution and the European Convention on Human Rights (ECHR).

An individual was allegedly grievously injured by Azzopardi who was found guilty and sentenced to two and a half years imprisonment (reduced to 10 months on appeal). The Court of Criminal Appeal (CCA) claimed more than a reasonable suspicion that Azzopardi and Bianco tendered false evidence under oath. The court ordered that they be charged before the competent courts after further police investigation under Article 523 of the Criminal Code. Yet without investigations, both were found guilty of lying under oath. A breach of human rights was alleged.

Article 39(1) and (5) of the Constitution state:

“(1) Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty:

Provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this sub-article to the extent that the law in question imposes upon any person charged as aforesaid the burden of proving particular facts.”

Article 6(2) of the ECHR states:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court of First Instance decided that there was no human rights breach – the right in question was sacrosanct only during the criminal proceedings themselves.

Weighing the value of the evidence tendered by the accused, clearly, the CCA had merely commented in its judgement on the veracity or otherwise of their versions, something natural if a court suspects lies. The court never condemned guilt but merely ordered proceedings be initiated, leaving it up to other competent courts to determine their guilt or innocence.

Constitutional Court

On appeal, Azzopardi and Bianco had claimed, among other things that:

• The right of presumption of innocence stands during and before and after criminal proceedings.

• The CCA’s opinion reflected their guilt – they had an objective justified fear that such declarations would render the Court of Magistrates that would decide on their guilt or otherwise for alleged false evidence incapable of impartiality and independence.

• The CCA’s declarations created “inappropriate pressure” upon the Court of Magistrates. References to ulterior investigations were insufficient to hinder the violation of the right to the presumption of innocence. The police did not carry out further ulterior investigations.

The Attorney General on Appeal

• The police had no obligation to carry out ulterior investigations. The CCA left this to the discretion of the Court of Magistrates.

• When a person is accused before a court, it may not express itself upon the guilt or otherwise of the accused until judgement is delivered. However, where another court is involved, this right no longer remains sacrosanct.

• In Police vs Arrigo et (Constitutional Court, 2003), a case referred to by the claimants, the facts were different – comments were made by the prime minister, not the court.

Final judgment

The CCA ordered the police to take criminal action against the appellants on the basis of Article 523:

“When there is a reasonable suspicion of any falsity of evidence, the court may order the arrest of the person suspected to be guilty thereof; if this takes place before the Criminal Court or CCA, the court shall order such person to be brought before the Court of Magistrates for the necessary inquiry; and if it takes place before the Court of Magistrates, such court shall proceed thereon ex officio.”

The court agreed that the right for the presumption of innocence must be respected before, during and after criminal proceedings. However, such stipulation must be treated carefully. Also, reference to case law involves a meticulous exercise – facts and circumstances must be the same or similar to the case under examination. The Arrigo Case involved declarations by someone having no connections with the judicial process. In the present case, the declarations were made by the Court however, in furtherance of the procedural rule attributed by Article 523 granting a court the discretion to use it or otherwise. Hence the orders could not be described as declarations of guilt.

Since the appellants never attacked Article 523’s validity, the Constitutional Court could not trace any of the alleged violations.

Regarding fear of the possibility that impartiality and independence would not be guaranteed before the competent Court in case of an eventual appeal, besides constituting mere speculation, laws of procedure offer safety measures (e.g. abstention of the presiding judge) to avoid legally unacceptable situations. Furthermore, despite these orders by the CCA as per Article 523, it still managed to remain detached to the extent that it also considerably reduced the term of imprisonment!

The CCA’s comments were made within the parameters of Article 523 – circumscribed by the principle of a reasonable suspicion and not by way of a declaration of their guilt when tendering evidence under oath.

The Constitutional Court confirmed the previous judgment since it could not trace any breach of the ECHR nor of the Constitution of Malta as alleged by the appellants.