Issue link: https://maltatoday.uberflip.com/i/804561
2 MATTHEW AGIUS A judge has moved to nip in the bud unorthodox methods of noti- fying judicial acts that appear to be developing, as he ordered the re- lease from arrest of a man who was detained on Thursday for failing to turn up for an appeal that he had filed himself. On Thursday a magistrate's court had ruled that it was unable to grant bail to Joseph Pisani, who had been detained at Msida police station whilst signing his bail book the day before, because he had not attended a sitting in an appeal case. Pisani had been on bail after fil- ing an appeal against a sentence of two months' imprisonment which he had been handed for failing to pay maintenance to his former partner. He was arrested when he went to sign his bail book, be- ing told that because he had failed to appear for a court sitting on 13 March, his appeal had been de- clared abandoned and his prison sentence, therefore, confirmed. Pisani insisted that he was never informed of the date of the sitting. By law, person has a right to file an application requesting the reap- pointment of an abandoned appeal within four days, but this period had long since elapsed. Pisani's lawyer Franco Galea had filed a writ of habeas corpus on Thursday, asking the court to order the man's release, together with an application for the reappointment of the appeal. But bail was refused on Thursday, the court saying that it was the Court of Criminal Ap- peal, and not the duty magistrate, that was competent to rule on the matter. In a decision handed down this morning, the Court of Crimi- nal Appeal, with judge Giovanni Grixti presiding, observed that the court usher who had been en- trusted with delivering the sum- mons to Pisani's home had been unable to find him at the address provided. The usher told the court that she had then called the Msida police station and an officer whose number she did not request, had confirmed that the summons had been handed to Pisani on 4 March. A constable from that police sta- tion testified to having handed the notification to Pisani but had not asked him to sign for it because that was a practice reserved for cases before the Court of Magis- trates. He was unable to confirm that the document he handed the man was in fact the notice of the appeal sitting. "It is evident from what has been said that there is a serious element of uncertainty about the usher's report about the delivery of the summons," the judge said. "This court cannot accept the usher's re- port as a valid one with tranquility, more so when the consequential failure of the appellant to appear led to his imprisonment. The cor- rectness of this report is a vital one in these procedures and therefore, once it emerged that the allegation is true, this court will uphold the applicant's request." The court observed that a prac- tice had evolved whereby telephon- ic confirmation was substituting actual, physical verification. "This is wrong and it is also wrong that a party accepts to be notified by a notice delivered at the police sta- tion, for collection and not asked to leave a receipt for the document he received, with the consequence that everything happens on the ba- sis of blind faith." Stressing that this pronounce- ment was not intended to cast a shadow over the police or court of- ficials, the judge ordered the Regis- trar of Courts to take the necessary steps to avoid this situation from repeating itself. The judge revoked the previous decree that declared his appeal abandoned and ordered Pisani's immediate release. Lawyer Franco Galea was legal counsel to Pisani. maltatoday, WEDNESDAY, 29 MARCH 2017 News Court: Lowell's behaviour 'unacceptable in a democratic society' CONTINUED FROM PAGE 1 Magis- trate Francesco Depasquale, cit- ing several local and European Court cases, held that, in view of Lowell's extremist outpourings, the articles were not libellous but factual. As a political person, Lowell was subject to higher lev- els of public scrutiny and criti- cism, added the magistrate. In throwing out the libel suit, the court noted that Lowell's be- haviour and comments he had made on broadcast media were "not in any way acceptable in a democratic society, where diver- sity and multiculturalism form the foundations of Maltese socie- ty, as shown by the very language we speak." In his appeal application, Low- ell had argued that the first court had not examined whether the articles were libellous, saying that they did not constitute fair com- ment, that the court was preju- diced against him and that the sentence was "excessively verbose and irrelevant in the greater part." But the Court of Appeal, pre- sided by judge Anthony Ellul, disagreed with everything the ap- plicant said. "I am not a neo-Nazi," Low- ell had asserted to the court. "I would be booted out of a Nazi party within five minutes… I am a libertarian." Quoting liberally from various posts on his website and online comments, the court observed that there was no doubt that the appellant wished Malta to be the first country in Europe where there were no immigrants. The court said that the use of the word neo-Nazi in the context it appeared, was a value judgment. "In the opinion of the court, the only message a reasonable reader would receive from the applicant is one of racism, xenophobia and hatred. In the circumstances, that he is described as a neo-Nazi can- not be taken to be libellous." Lowell had never denied mak- ing the xenophobic comments, which could reasonably lead readers to conclude that he was a fanatic with a position of zero- tolerance towards the presence of immigrants in Malta. "It is evi- dent that, on this subject, there is no space for discussion with the appellant." The court noted that Sansone's renunciation of his article did not imply that it was libellous, as Lowell appeared to argue. "This is a position that this defendant chose to take." On his objections to being linked with an arson attack on columnist Daphne Caruana Gali- zia, who had also taken a stand against his extremist rhetoric, the court said "one doesn't need to be a professor to understand the applicant's message. Threatening and using words of intimidation and then he expects the media to handle him with silk gloves. This is precisely a case of cowardice ("persuna li titfa' l-gebla u wara tahbi jdejha")." The judge ended his judgment with a quote from Council of Eu- rope Journalism at Risk (2015). "When people who are not pub- lic figures engage in hate speech, it might be wise to ignore them entirely. Freedom of speech is a right for everyone, including poli- ticians and public figures, and it is the job of the journalist to en- sure that everyone has their say, but that does not mean granting a licence to lie, to spread malicious gossip or to encourage hostility and violence against any particu- lar group. When people speak out of turn, good journalism should be there to set the record straight for all " The court dismissed the appeal, ordering Lowell to also pay for the costs of the case. Lawyer Veronique Dalli ap- peared for the defendants. In a statement, MaltaToday executive editor Matthew Vella welcomed the confirmation of the first court's decision. "Sav- iour Balzan and I are pleased with this outcome, which is a victory for combative journalism against the far-right in Malta, which demands to take up space in the democratic environment with its agenda of hatred and ra- cial discrimination. We thank all our lawyers, past and present, who were with us in this overlong court case, as well as all past sup- porters of our libel fund." Judge slams 'blind faith' in notification practices Mr Justice Giovanni Grixti Woman wins right to private life MATTHEW AGIUS A government notary has told a court that notarial searches are not carried out on ID card num- bers, but on the basis of family ties because the computerised system was "not yet ready." This emerged during a case filed by a company director who as said she felt intimidated and disgusted that her divorced marital status, and the name of her ex-husband, needed to feature in a promise of sale for the acquisition of a San Gwann property for her company. In a case filed by Marie Therese Cuschieri against the Attorney General, Cuschieri objected to a legal requirement that when sign- ing a promise of sale, a woman's divorced marital status, and the name of her ex-husband needed to be written down after her name. No equivalent requirement ex- ists for men. Cuschieri had also claimed that the proviso which made the inclusion of her marital status necessary constituted un- due interference in her private life. Cuschieri explained that her no- tary had told her that the contract would have to list her marital sta- tus otherwise it could not be ac- cepted at the public registry. She claimed that this made her feel uncomfortable and intimidated, as she realised that she would have to be associated with her ex-husband for the rest of her life. Testifying by means of an affida- vit, she wrote that she had been so disgusted by the situation that at a subsequent board meeting she had passed a resolution for her son's name to appear on the contract instead of her own. Government notary Keith Ger- man was summoned to the wit- ness stand, from where he con- firmed that requirement for the marital status of a women to be specified was included in the No- tarial Profession and Archives Act, to make it easier for notaries to carry out searches about a client. German explained that the sys- tem for notarial searches was not carried out on the basis of ID card numbers but rather on the sur- name because the registration of property was not yet complete. Cuschieri, who had separated from her husband in 2013 before obtaining a divorce in 2015, had signed a promise of sale to acquire a property for a company, in her capacity as the company's direc- tor. Judge Lorraine Schembri Orland found for Cuschieri, declaring that the requirement for a woman's marital status to be listed on the notarial document was not in keeping with the Constitution and the articles of the European Con- vention on Human Rights which dealt with the right to respect for private and family life and the pro- hibition of discrimination. The court also declared that the applicant's right to private and family life had been violated. The judge ordered that a copy of the judgment to be delivered to the Speaker of the House for the mat- ter to be discussed in Parliament. In an online statement, NGO Women's Rights Foundation said it was proud to have represented Cuschieri. "Traditionally, throughout histo- ry, women in patriarchal societies have been seen through the lens of 'ownership' by men in their lives. In our laws, and up to this con- stitutional court decision, women still had to declare their status on any public deed, as required by notarial act. No similar require- ment exist for men. This is one of several cases that WRF is leading in court, in order to ensure that such archaic discriminatory laws are repealed to ensure that women have full equality at law," the NGO said.