Remittal of the record of proceedings during the compilation of evidence phase : an abused practice in Maltese criminal procedure?

Abstract

This study sheds light on the procedural inefficiencies caused by the current position adopted by the Maltese Criminal Code vis-à-vis the Attorney General’s unrestricted capacity to send back the record of the criminal inquiry with fresh requisites - the technical Maltese term is rinviji - following the issuance of the prima-facie decree by the Court of Magistrates as a Court of Criminal Inquiry. The Attorney General may unrestrictedly transmit ‘note of remittal’ requests for countless times before eventually coming to decide whether or not to formally indict the person who stands charged. While the importance of the ‘note of remittal’ stage is undisputed, the problem is that, at times, this intermediary phase frivolously drags on for far too long and causes excessive procedural delays. It is therefore abundantly clear that the ‘note of remittal’ practice, if not utilised diligently by the Attorney General, may pose a serious threat to the proper functioning of the administration of justice and particularly to the fundamental right enjoyed by the person charged to have his/her criminal case decided ‘within a reasonable time’ in line with section 39 of the Constitution of Malta and section 6 of the European Convention on Human Rights. This dissertation pinpoints and addresses various shortcomings by way of reference to the standards set-out by the European Court of Human Rights in its vast caselaw in relation to the ‘reasonable time’ requirement along with a review of a select few pertinent Maltese constitutional cases. The feasibility of a number of possible solutions is also explored in the concluding chapter.