Court rules rights of accused breached as case takes more than six years

Nearly six and a half years after his arrest, Robert Agius is still facing ongoing drug-related criminal proceedings, a fact which has been declared in breach of his fundamental rights.

Agius was prosecuted on May 11, 2012 for conspiracy to traffic heroin, aggravated drug possession, keeping unlicensed firearms and ammunition as well as recidivism.

But proceedings hit a brick wall with a central witness refusing to testify due to a criminal case against her. It was this witness who had told the police that Agius had given the order for the drug to be smuggled into Malta.

The woman had been summoned to testify on two occasions and had refused both times. Although authorised to summon the witness a third time in March 2016, the prosecution had registered no progress over one year later, first reporting that the woman’s appeal had been put off indefinitely and later through repeated no shows by the witness.

The woman was eventually escorted to the witness stand at the court’s demand, only to refuse to testify as judgment against her was still pending and her appeal had not yet been re-appointed for hearing.

Agius’ lawyers filed a constitutional reference to the First Hall, Civil Court in November 2017, requesting a pronouncement to the effect that Agius’s right to a fair hearing within a reasonable time had been breached.

Setting out a timeline of events since the accused’s arraignment, the Court, presided over by

Madam Justice Jacqueline Padovani Grima, observed that despite there having been 41 hearings, the case against Agius had not yet been concluded and the prosecution had put forward no evidence for over two years.

Referring to local and European caselaw, in which the concept of ‘reasonable time’ was left to the Court’s discretion, to be decided according to the circumstances of each particular case, based on whether the proceedings “exceeded the term normally acceptable within a democratic society,” the Court ruled that the prosecution’s insistence on summoning the “indispensable” witness who had every right not to testify while her appeal had yet to be heard, was “unacceptable” in view of the lapse of time. Over 6 years had passed since Agius’ arraignment.

For this reason, the Court declared that the man’s right to a fair hearing within a reasonable time was being breached. The judge ordered the Director of the Criminal Courts to re-appoint the witness’ appeal within one week and urging the Court of Appeal to hear the case without delay, whilst Agius’s criminal case resumed before the Court of Magistrates.

Lawyers Arthur Azzopardi and Rene Darmanin appeared for Agius.