Delay that denies cross-examination breaches fair trial
The First Hall of the Civil Court held on 22 April 2026 that a wait of more than 20 years for trial, during which the main prosecution witness died before cross-examination, breached the right to a fair hearing. It awarded €6,000.
In C.C. vs L-Avukat Tal-Istat, the First Hall of the Civil Court (Constitutional Jurisdiction) held on 22 April 2026 that the State breached an accused man's right to a fair hearing within a reasonable time. Mr Justice Lawrence Mintoff found that the same delay cost him the chance to cross-examine the main prosecution witness, who died before the trial. The court ordered the State Advocate to pay €6,000 in non-pecuniary compensation.
The facts
C.C. was arraigned in 2004, charged among other offences with the attempted wilful homicide of a man. That man testified against him during the compilation of evidence but refused to answer questions in cross-examination, because criminal proceedings against the witness himself were pending.
The bill of indictment against C.C. was filed in 2008, and his jury trial was set for 2010. On the request of the Attorney General, the Criminal Court put off the trial until the proceedings against the witness ended, because the prosecution needed his testimony.
Those proceedings lasted until 2023. The Court of Magistrates gave judgment in 2020, and the proceedings were declared extinguished while an appeal was pending, after the witness died.
On 5 March 2024 the Criminal Court rejected a plea by C.C. that the dead witness's deposition was inadmissible, under article 646(2) of the Criminal Code (Chapter 9 of the Laws of Malta). That court said it could not rule on constitutional matters. C.C. then filed this case. His trial had not taken place when the court gave judgment.
What the court held
The State Advocate pleaded that C.C. had not used his ordinary remedies, since he did not appeal the Criminal Court's judgment of 2024 and did not oppose the postponement in 2010. The court rejected both points.
It held that the Criminal Court's decision was legally correct and had sent the constitutional complaint to the proper forum. It also held that C.C. could not have foreseen in 2010 that the other case would last 13 more years. The court rejected the plea that the case was premature, and examined the proceedings as a whole, including the file against the witness.
That file showed sitting after sitting in which nothing happened, several changes of magistrate and repeated warnings to close the evidence that went unheeded. The prosecution asked for a handwriting expert only in 2015, 11 years after the letters in question had been exhibited.
The court held that “huwa dmir primarju tal-Istat li jkollu fis-seħħ sistema ġudizzjarja effiċjenti u effettiva” (it is a primary duty of the State to have in place an efficient and effective judicial system), and that the State had failed in that duty.
On cross-examination under article 39(6)(d) of the Constitution and article 6(3)(d) of the European Convention on Human Rights, the court accepted that its absence alone does not breach the right to a fair hearing. It weighed why cross-examination was now impossible, the years of waiting and the anxiety they caused.
It also noted that C.C. had done all he could to speed up his case, and could not force the witness to answer questions that might incriminate him. It concluded: “Il-Qorti tqis li d-dewmien li kkontribwixxa għal leżjoni tad-dritt tar-rikorrent għal smigħ xieraq fi żmien raġonevoli, huwa l-istess dewmien li lilu qiegħed iċaħħdu milli jagħmel il-kontro-eżami tax-xhud prinċipali” (The court considers that the delay behind the breach of the applicant's right to a fair hearing within a reasonable time is the same delay that deprives him of cross-examining the main witness).
The court declared a breach of article 6(1) of the Convention and article 39(1) of the Constitution on delay, and of articles 6(1) and 6(3)(d) of the Convention and article 39(6)(d) of the Constitution on cross-examination. It awarded €6,000, payable within a month of the judgment becoming final, and ordered the State Advocate to pay the costs.
Why it matters
Where a trial is put off to await another case, defence counsel should watch that case and press for progress. This judgment treated the loss of a witness as part of the harm caused by delay. A constitutional claim need not wait for the end of the trial when a specific factor, such as the death of a witness never cross-examined, already affects fairness.
Where it sits
Fairness under article 6 is judged on the proceedings as a whole, and the rights in article 6(3) are aspects of that overall right rather than ends in themselves. A single factor can still be so decisive that fairness may be assessed at an earlier stage. The court drew these points from the European Court of Human Rights (13 September 2016).
On the State's duty to organise its courts so that cases end within a reasonable time, the court relied on the Constitutional Court (11 August 2003). That judgment in turn drew on the European Court of Human Rights (13 July 1983) and (10 July 1984).
On compensation, it applied the factors listed by the Constitutional Court (27 February 2015): the length of the delay, the criminal nature of the proceedings, the uncertainty and anxiety caused, and the applicant's own conduct and initiative.
Source
First Hall of the Civil Court (Constitutional Jurisdiction), 22 April 2026, 530/2024