A case of potential discrimination in the Constitutional Court has led to legal experts wondering if the judiciary presiding over the case may be liable to jail time in light of Article 139A of the Criminal Code.

The issue revolves around two different decisions in two identical cases by the same three judges, including retired Chief Justice Joe Azzopardi, within a matter of days.

Judge Jacqueline Padovani Grima had found a breach in Christopher Bartolo’s ongoing case and annulled his conviction and punishment, with proceedings having to start afresh. At the same time, another judge had found a breach in case of Brian Vella but ordered for the removal of the police statement from the acts of the proceedings only.

In Bartolo’s case, the Attorney General appealed and in Vella’s case the accused appealed, with both cases ending up at the same time in front of the Constitutional Court composed of the same three judges presided by retired Chief Justice Joe Azzopardi.

However, in the appeal, the Constitutional Court took away and denied the reasoning from which Bartolo had benefited in the Padovani Grima judgment and denied him the restart of the proceedings.

In a matter of days, the same court granted the same reasoning and subsequent benefit to Vella while rejecting such reasoning to Bartolo in the Constitutional appeal.

Both cases revolve around plaintiffs charged with offences related to drug trafficking, and both gave statements to the police without consulting a lawyer. They both answered questions that were incriminating, and these statements were used against them. 

Some legal sources think this might fall within the purview of Article 139A of the Criminal Code which punishes discriminatory decisions by people in official duties which cause severe hardship in their recipients by up to five years imprisonment in what could be a major issue for the administration of justice.

Whilst there are divergent views as to whether Article 139A applies to this judicial decision, the issue is set to be a huge headache or even worse for the administration of justice that has been under the spotlight of the Venice Commission for the past months.

In the Bartolo case, whilst confirming the violation, the appeal court presided by Joe Azzopardi revoked the part of the sentence where it was ordered that the applicant be placed in the same position before he answered the question as to whether he is guilty or not.

This decision contrasts with a decision given by the same Constitutional Court a few days later composed of the same three Judges presided over by the same former Chief Justice Joseph Azzopardi [a completely identical composition] and which led to a different decision in two practically identical cases – and this in a period of a few days.

The cases are both ongoing, with Bartolo set to return to court in January; however, this case of potential discrimination may still loom over court for the time being.

What do you think of these cases?