Communicated on 27 May 2015

FIFTH SECTION

Application no. 24221/13 Carmel SALIBA against Malta lodged on 5 April 2013

STATEMENT OF FACTS

The applicant, Mr Carmel Saliba , is a Maltese national, who was born in 1949 and lives in San Gwann . He is represented before the Court by Dr I. Refalo , a lawyer practising in Valletta.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

A robbery took place on 12 May 1995 in the home of Mr and Mrs Z, the former is a lawyer by profession. It transpires that according to the versions of the victims at the time, the robbery was carried out by five to seven hooded men who appeared to be under the effects of drugs. Various items were stolen and the victims were injured. During the robbery one of the robbers said “give us the two buckets of gold you told us you had in your possession”, further conversations between the robbers indicated that they had a southern Maltese accent. When questioned after the incident the victims had stated that they had not recognised anyone at the time, since they had been kept face down in the bedroom during the robbery.

The applicant and his brother, like their father previously, had worked for family Z as plumbers and electricians.

During the investigation Mr Z mentioned the applicant and his brother as possible people who had access to his house, without indicating that he identified either of them as the robbers. Thus, neither of them had, at the time, or later, been criminally prosecuted for this robbery because of the lack of any evidence pointing in their direction.

Indeed in 1996, the relationship between the brothers and the Mr Z broke down following Mr Z ’ s failed payments to the applicant ’ s company. Thus, in 1997 Saliba Brothers (company owned in part by the applicant) instituted proceedings against Mr Z claiming payment for services rendered (these proceedings were eventually withdrawn following payment of the dues).

Pending the above-mentioned proceedings, Mr Z started bad-mouthing the applicant with neighbours who had also suffered burglaries. He alleged that it had been the applicant, i.e. their common electrician, who had committed them.

Five years after the robbery, in 2000, couple Z sued the applicant in civil proceedings for the damages resulting from the said robbery as in retrospect Mr Z considered that he recognised the applicant as one of the robbers.

2. Civil proceedings

(a) Proceedings before the Civil Court (First Hall) in its civil jurisdiction

During the proceedings, the court heard evidence by Mr Z and accepted an affidavit by Mr Z ’ s wife. The applicant was unable to cross-examine Mrs Z on the basis of medical advice given by an ex parte doctor. The applicant ’ s request to expunge it was also refused. The applicant also testified before the court as well as his wife. The court heard further evidence from the police investigator, the brothers of the applicant (F and S), WB (employee of the Z family), an architect, two neighbours, and the applicant ’ s seven sisters.

(b) The first-instance judgment concerning responsibility

By a judgment of 10 October 2006 the Civil Court (First Hall), in its civil jurisdiction, considered that the applicant had taken part in the robbery and therefore ordered him to pay damages yet to be quantified, and requested the plaintiffs to submit a claim. The court admitted that there had been various inconsistencies in the testimony of Mr Z, for example statements that the applicant had been silent, and yet that the victim recognised him through his sense of hearing, as well as his statement that someone told him [that it had been the applicant]. The court further noted that many of Mr Z ’ s arguments to indicate the applicant ’ s implication had weakened his version, indeed they had been far-fetched and banal, usually an indication that an individual was not convinced of his statement. The court noted that the only established facts were that the robber knew both the house and Mr Z. This gave the robber a reason to remain silent during the robbery. However, the applicant had these qualities together with many other people. Further, the robbers knew about the “buckets of gold”, which allegedly Mr Z had mentioned to the applicant, this unfortunately indicated that Mr Z used this factor for the identification of the applicant, and it would have been better to rely solely on visual identification.

Nevertheless, the court considered Mr Z ’ s testimony reliable on the basis that identification could be based on mannerisms, movements and silhouette, even if the face and voice remained hidden. It concluded that the applicant “had taken part in the robbery” and in application of the civil code was responsible for the damages suffered by the claimants.

(c) The continuation of proceedings concerning quantification of damage

By means of an affidavit of 13 November 2006, couple Z claimed damages amounting to around 125,000 Euros (EUR) covering the items and money stolen (including a list of jewellery drawn up with the assistance of a professional who had not taken oath) and the expenses to repair the damage caused to the house. They further claimed medical expenses of EUR 85,000 in relation to the injuries suffered.

On 8 January 2007 the applicant made submissions on this point requesting the court to expunge the affidavit of 13 November 2006, on the basis that the stage of putting forward evidence had been closed two years earlier and Mr Z had declared that he had no longer any proof to submit.

(d) The first instance judgment concerning the award of damage

By a judgment of 4 March 2008, the Civil Court (First Hall), in its civil jurisdiction ordered the applicant to pay EUR 130,000 in damages, namely the EUR 125,000 in stolen items and cash, as declared by Mr Z, and EUR 5,000 in medical expenses. The court noted that the victims were not required to have receipts of the items obtained over several years or proof of how much cash they had in the house. In such circumstances the best proof was the victims ’ declaration on oath, the veracity of which (also after seeing the house) the court had no reason to doubt. Thus, damage for items stolen had to be granted on the basis of Mr Z ’ s claim. However, as to the medical expenses, while it was true that the claim had also been made on oath, given that the expenses were incurred after the robbery and when couple Z had already decided to sue, the court considered that the claimants should have kept receipts of such expenses. It thus gave this award in arbitrio bon viri .

On the same day the court refused the applicant ’ s request to expunge the claim for expenses rendered by means of an affidavit not confirmed on oath by the ex-parte expert and submitted at a stage after the submission of evidence had closed. The court considered that the claim was not new evidence as such and it was the only proof of the damage. Moreover, it had been the court which requested Mr Z to file the claim.

(e) The appeal proceedings

The applicant appealed all the above decisions. In his appeal application and again orally during the appeal hearing he requested the court to allow the production of his brother in court (to show that the victim could not differentiate between the two). However, the Court of Appeal ignored his repeated request.

The Court of Appeal, by a judgment of 6 October 2009, considered that it was not for it to alter the assessment of evidence in the absence of compelling reasons and noted that for civil proceedings a moral conviction sufficed to reach a finding as opposed to proof beyond reasonable doubt, required in criminal proceedings. In the present case, the whole case depended on Mr Z. ’ s testimony, which the first-instance court had chosen to believe, despite its inconsistencies. It noted that the law did not provide what was necessary for identification but only what was not necessary thus leaving it for the judge to decide according to his discretion. As to the award of damages, the Court of Appeal noted that Mr Z ’ s testimony had been made on oath, and the list of jewellery drawn up with the assistance of an expert (despite him not having confirmed it on oath), thus, Mr Z could not be blamed for not presenting further evidence of the damage. If the applicant had doubts as to the expert, he could have, at the relevant time, challenged him and called him as a witness.

3. Constitutional redress proceedings

The applicant instituted constitutional redress proceedings claiming a violation of Article 6 §§ 1 and 2 of the Convention.

(a) The judgment at first-instance

By a judgment of 7 October 2011 the Civil Court (First Hall), in its constitutional jurisdiction, rejected the applicant ’ s claims.

It considered that the applicant had not been found guilty of a criminal offence but only responsible for damages arising as a result of that crime, in consequence the proceedings remained civil and the burden of proof remained one for civil cases, namely a balance of probabilities, and did not require a more onerous degree of proof. It noted that the first court assessed the evidence available and considered that the identification of the applicant had been convincingly established; the Court of Appeal found no reason to alter that conclusion, thus there was nothing which indicated a breach of the applicant ’ s rights.

As to the applicant ’ s inability to cross-examine Mrs Z, it noted that there had been a valid reason, namely her poor health as confirmed by her doctor, and the applicant could comment on her written testimony. In its view there had been nothing arbitrary in the court ’ s decision to refuse to expunge that statement, as it had acted within its discretion. Furthermore, the applicant had not appealed this matter before the Court of Appeal.

As to the refusal of the appeal court to hear his brother, it noted that it was not for the Court of Appeal to re-hear witnesses and the applicant ’ s brother had already given testimony in written and oral form at first instance. As to the refusal to expunge the “late” claim for damages, it found that this fell within the court ’ s discretion to proceed with the case in the way it deemed fit in the interests of justice. Lastly, no issue arose with the courts ’ acceptance of an evaluation of damage which had not been confirmed under oath by the expert, and such an evaluation fell within the discretion of the courts. It followed that the applicant ’ s rights had not been breached.

The applicant appealed.

(b) The judgment on appeal

By a judgment of 15 October 2012 the Constitutional Court also rejected the applicant ’ s claims. It considered that in the civil proceedings the first-instance court had no doubt about Mr Z ’ s testimony and his identification of the applicant and nothing indicated that that court had not taken into consideration all the necessary matters for its assessment. Further, the Court of Appeal had not found there were compelling reasons to alter that decision.

As to the failure of the Court of Appeal to hear the applicant ’ s brother it considered that although this request had been made in writing amongst other pleadings in the appeal application, it had not been reiterated in the concluding requests of the appeal application. Further, there was no note in the minutes of the hearings that this matter was brought up orally. In any event, the brother had given testimony at first instance, and while such a decision fell within the discretion of the courts, the applicant had not proved that the failure to re-hear the witness caused him prejudice.

As to the inability of the applicant to cross-examine Mrs Z, the Constitutional Court noted that her testimony (unlike that of her husband) had not referred to the identification of the applicant, which was nearly the only factor on which the civil court had based its decision. Thus, no prejudice had been caused to the applicant. It followed that no issue of equality of arms arose as a result of the two procedural steps examined above.

As to the decision on the damage, the Constitutional Court considered that it had not transpired that the principle of onus probandi incumbit ei qui dicit non ei qui negat had not been respected, as the civil court had opined that the damage had been proved by Mr Z.

Lastly, it concluded that there had been no violation of Article 6 § 2. It considered that the fact that civil courts considered that the applicant “had taken part in the robbery” did not impute criminal responsibility. Its findings had been based on civil responsibility arising from delict in the Civil Code and not criminal responsibility under the Criminal Code.

4. Subsequent events

According to medical documents submitted, following the above judgments the applicant became extremely depressed and unfit for work. He was thus excused from work and was now receiving social assistance.

On 25 March 2010 couple Z made a request for a judicial sale by auction of property belonging to the applicant in order to recover their dues. Another such request was made on 11 February 2013.

The applicant attempted to obtain the entire case-file concerning the civil proceedings, however, he was informed that it has gone missing from the Registry of the Courts of Malta - the applicant lodged the application before this Court with the documents in his possession from which the above facts transpire.

B. Relevant domestic law

Article 648 of the Maltese Criminal Code reads as follows:

“In order to identify any person whose identity is required to be proved, or in order to identify any object to be produced in evidence, it shall not, as a rule, be necessary that the witness should recognize such person from among other persons, or pick out such object from among other similar objects, unless the court, in some particular case, shall deem it expedient to adopt such course for the ends of justice.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the fairness of the civil proceedings lodged against him. He referred to the assessment of evidence by the domestic courts and to their lack of attention to its validity, credibility or relevance. He further complains that the Court of Appeal had not considered whether there had been impelling reasons to disturb the first court ’ s assessment of evidence. Moreover, the applicant complains that contrary to the equality of arms principle he had not been allowed to cross-examine a main witness and that the court accepted the expert ’ s statement without appointing an independent one. Similarly, he had not been able to rebut the quantification of the claim for damages made solely by the victim (and at a stage where the submission of evidence had been closed). Further the burden of proof had been reversed in so far as he had to prove that the quantification was incorrect as opposed to the principle onus probandi incumbit ei qui dicit ei qui negat . The applicant also complains about the rejection of the Court of Appeal to allow the production in court of his brother, to attack the credibility of the victim ’ s testimony.

QUESTIONs TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention in the civil proceedings lodged against him? In particular, was the principle of fairness respected as regards the findings of the civil courts that the applicant was responsible for the damage resulting from the robbery? Did the domestic civil courts give attention to the validity, credibility or relevance of all the evidence submitted? Have any inconsistencies in witness evidence been addressed by the domestic civil courts and did their decisions provide adequate reasoning?

2. Furthermore, was the principle of equality of arms respected? Attention is drawn to the applicant ’ s inability to cross-examine Mrs Z and to have his brother testify before the Court of Appeal, as well as to the circumstances concerning the claim and eventual award of damage. In this connection did the decisions of the civil courts, if any, rejecting the applicant ’ s requests contain adequate reasons?