Republic of Malta

vs

Adele-Marianna Creta

The Honourable

Mr Justice

Lawrence Quintano

Criminal Court

4 October, 2011

This was a Court decree arising from a request for nullity of criminal proceedings on the basis that the accused Adele-Marianna Creta was served with a bill of indictment in the English language which she allegedly did not understand. The applicant claimed that as a result of this, she failed to comprehend and therefore exercise her legal rights and was therefore prejudiced as a result thereof. (Note: The bill of indictment is the formal accusation for bringing a person to trial before the Criminal Court.)

The Facts: The accused filed an application claiming that when served with a bill of indictment in English, she did not understand her rights with regard to time limits for filing any preliminary pleas because her language was Romanian and not English. The accused claimed that the proceedings in the Court of Magistrates as a Court of Criminal Inquiry were conducted in the English language notwithstanding that from the written statement she had made to the Police it was clear that English was not her language since she had made such statement with the help of an interpreter. During these proceedings the applicant was provided with an interpreter to translate from English into Romanian. The applicant submitted that these proceedings, including the bill of indictment, were in English. She claimed that this breached Article 516(1) of the Criminal Code which she claimed “contains a provision of public policy” – 516. (1) The Maltese language shall be the language of the courts and, subject to the provisions of the Judicial Proceedings (Use of English Language) Act, all the proceedings shall be conducted in that language. Hence, according to the applicant, the proceedings against her were illegal. She claimed that since she did not understand what was required of her when she was served with the bill of indictment, she had failed to file any preliminary pleas and/or indicate witnesses in her defence. She reiterated that she could not be considered an English-speaking person in accordance with Article 7(b) of the Judicial Proceedings (Use of English Language) Act (Chapter 189 – Laws of Malta) – (b) an English-speaking person is a person who has not a sufficient knowledge of the Maltese language fully to understand and follow the proceedings if conducted in that language but who has a sufficient knowledge of the English language fully to understand and follow the proceedings if conducted in that language. She claimed that the fact that she was provided with an interpreter to translate the proceedings from English to Romanian revealed that her knowledge of English was limited. The applicant requested for the proceedings against her to be declared as null and void on the basis that they were conducted in violation of the above legal provisions.

The Attorney General replied that the disputed proceedings were not null as (i) Article 438(2) of the Criminal Code sets a definite time limit of 15 working days from the date of service of the bill of indictment to raise any preliminary plea; (ii) the Court of Magistrates had ordered that all the proceedings be conducted in the English language and neither the accused nor the defending lawyer had objected to this decree; (iii) Articles 3(d) and 4 of Judicial Proceedings (Use of English Language) Act state that a court of criminal jurisdiction can order that proceedings to be conducted in the English language.

The Court referred to Article 449(5) of the Criminal Code also invoked by the accused which states: “… the nullity of the indictment may be raised by the court ‘ex ufficio’ either before the accused answers to the charge, or after the verdict of the jury.” The Court referred to a 2009 judgement The Police vs Pashkov which considered a similar submission to the applicant’s request. This judgement concerned an extradition case where the appellant had submitted that the language of the Court was indeed Maltese, yet, the proceedings had been conducted in the English language. The defendant had appeared to have a sound knowledge of the English language when making his statement to the Police but once in Court, he declared that he knew neither Maltese nor English. The Court did not have an interpreter who could translate from Maltese into Ukrainian and appointed an interpreter to translate from Ukrainian into English and vice versa. The Court had decided this case by finding that the procedure adopted by the Court of Magistrates did not lead to any nullity of the proceedings or to the inadmissibility of any testimony given.

The Court noted that from the above judgement, it appears that the Court of Criminal Appeal (Inferior) is adopting a more pragmatic approach in submissions about the use of language during the proceedings even if the decree of the Court of Magistrates does not follow the provisions of the Criminal Code or of the Judicial Proceedings (Use of English Language) Act. The Court noted how in the abovementioned 2009 judgement, the Court stressed the fact that the person whose extradition was being sought could understand the language of the proceedings.

The Court noted how the applicant in this current case stressed the ‘public order’ characteristic of section 516(1) of the Criminal Code. Reference was made to Article 3(b) and (c) of the Judicial Proceedings (Use of English Language) Act: “(b) where of two or more persons charged together one or more is or are Maltese-speaking and one or more is or are English-speaking and all the Maltese-speaking persons so charged make a declaration in the records of the court consenting to the proceedings being conducted in the English language, or where none of the parties is either a Maltese-speaking person or an English-speaking person, the court may order that the proceedings be conducted in the English language;

(c) where of two or more persons charged together one or more is or are English-speaking and none of the others is Maltese-speaking, the court shall order that the proceedings be conducted in the English language;

Therefore according to Article 3(b) if Maltese-speaking people make a declaration that English may be used where other people who are charged with them are English-speaking, then the Court may decree that proceedings should be conducted in English. Article 3(c) is interesting as one would expect the legislator to lay down that the Maltese language should be used in the context where some of the people charged are neither English-speaking nor Maltese-speaking while some are English-speaking. Instead, the legislator opted for the use of the English language.

The Court, in this regard commented that by the year 1965, when Chapter 189 was enacted, the legislator was already being flexible to avoid protracted proceedings and interpretation fees. On this basis, the Court held that it found difficulty in accepting the applicant’s plea of public order, particularly when the law is expressly taking a more practical approach to resolving the problem. The Court noted that Chapter 189 being a special law enacted after Article 516 of the Criminal Code indeed prevailed. The Court held that the aim of Chapter 189 was to aid English-speaking people and not to create nullities. The Court noted that in fact, ‘nullity’ does not appear in any article of this law. Therefore, after consideration of the above, the Court held that there was no basis for the public order submission made by the accused.

The Court further noted that according to the records of the case, in her first appearance in Court, the accused was answering questions about her identity in English and was assisted by a lawyer who raised no objection to the proceedings being held in English.

The Court also referred to the last paragraph of its previous decree wherein it had noted the way the applicant reacted whenever the English language was being used by the Court – her intonation, sentence structure and eye movements revealed that she had a sound knowledge of English and that she could follow all proceedings in English without any linguistic problems.

The Court concluded by stating that should the accused’s knowledge have fallen short of the level required by section 7(b) of Chapter 189, this did not mean that the proceedings were null but only that an interpreter should be available to assist her, and this in terms of the Constitution and the European Convention on Human Rights. She was never denied such right nor was she going to be denied it.

The applicant complained that when she was served with the bill of indictment in English, she did not understand what she had to do. The Court wondered what she would have done had it been in Maltese as she was claiming. The Court commented that the applicant definitely realised that the document she was served with was a court document and hence she should have consulted a lawyer of her choice or the lawyer appointed by the Court of Magistrates. In this manner, she would have been advised about her right to file preliminary pleas and / or a list of witnesses. In any case, the Court noted that any person receiving a Court document is advised to seek legal advice. If the accused failed to contact her lawyer within the time span set out in Article 438(2) of the Criminal Code, she cannot now indirectly extend this peremptory time limit by alleging a nullity of the proceedings on linguistic grounds.

The Court therefore concluded and dismissed the accused’s request.