By Times of Malta
Imagine a boxing ring where one fighter has full protective gear, a seasoned coach, and a powerful right hook, while his opponent enters barefoot, blindfolded, and holding a napkin. That would hardly be a fair fight. Lawsuits are also fights, with words instead of brute force. In the legal realm, the concept of equality of arms avoids imbalances in the courtroom. Rooted in the broader right to a fair trial under both Article 6 of the European Convention on Human Rights (ECHR) and Article 39 of the Constitution of Malta, ‘equality of arms’ means that both parties in legal proceedings must be given a genuine opportunity to present their case under conditions that do not place one side at a disadvantage. It does not require perfect equality in resources between the disputing parties, but it does demand that both sides have a fair chance to defend their arguments, access relevant information, challenge the opposing case, and be heard by an impartial tribunal. The purpose behind equality of arms is not simply to promote procedural symmetry; it is to protect the integrity of justice itself. Trials should be rigorous, not theatrical. They must be based on evidence, reasoning, and fairness, and not who has better legal armour. Thus, this concept ensures that justice is not a game rigged from the start. This principle was thoroughly examined by the Constitutional Court in its judgment in the names of Tran Manh Hung vs the Attorney General et on the 28th of April 2025. Tran Manh Hung was charged before the Court of Magistrates as a Court of Criminal Judicature with the forgery of documents and other offences related to obtaining a visa. He was first arraigned under arrest on 7th October, 2023. On that same day, he requested bail. However, the court denied his request due to fears that he might tamper with evidence. Three days later, the accused made another request for bail. This too was denied by the court, which affirmed that the defendant lacked clear ties with Malta. The defendant proceeded to request bail for another three times within the subsequent months, albeit consistently denied due to risks of absconding and tampering of evidence. In light of this, the defendant proceeded to file for a human rights breach before the Civil Court (First Hall), arguing that, at that stage, there was absolutely no valid reason for his continued preventive detention. His claims stemmed from the fact that there was no forum to review the decrees delivered by the Court of Magistrates as a Court of Criminal Judicature, meaning that he was doomed to undergo the entire process under preventive arrest. He argued this was effectively tantamount to punishing him before finding him guilty. He additionally argued that, meanwhile, that the Attorney General could always request the Criminal Court to overturn the Magistrates’ Court’s decision to release him from preventive custody. The Civil Court (First Hall) initially pointed out that under Article 575(4A) of the Criminal Code, where the Court of Magistrates as a Court of Criminal Judicature grants bail to the person in custody or subsequently amends the bail conditions, the decision of the court to that effect must be served on the Attorney General, who may apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released or to amend the conditions that may have been determined by said Court of Magistrates. However, the only forum available to the accused to apply for bail was the mentioned Court of Magistrates, with no right to review by any other court. Conversely, the Attorney General always had the right to appeal as just noted. However, the Civil Court (First Hall) identified that, although it was true that the claimant had no right to review before another forum following a decree by the Court of Magistrates as a Court of Criminal Judicature, this did not necessarily mean that his right to a fair hearing would be violated. The right to a fair hearing must be considered in the entirety of the proceedings, and not as an isolated aspect. And given the then-very early stage of the criminal proceedings against the claimant, the allegation that he had already suffered a breach of this fundamental right was deemed largely premature. The Civil Court (First Hall) proceeded to explain that the ‘equality of arms’ tenet was a separate matter from the current issue because what that principle sought to ensure was that, in adversarial proceedings, both parties had the opportunity to present their evidence, challenge the evidence of the opposing side, and make their observations on the matter under examination. The fact that the defence could not request a review of a denial of bail from another court while the Attorney General has a right of review before the Criminal Court does not affect the defence’s ability to present its case. Moreover, the right to a fair hearing did not imply that the claimant had an automatic right of appeal. Furthermore, the Civil Court (First Hall) observed that there was no limit to how many times the claimant may apply for bail. Regardless of how many times such applications were rejected, the claimant always had the right to apply for bail. This, paired with the fact that the Court of Magistrates was holding hearings every two weeks because the claimant was incarcerated meant that the necessity of his continued detention was being reviewed on an ongoing basis. Therefore, the Civil Court (First Hall) ruled that there was no breach of the claimant’s right to a fair trial. Citing renowned authors, the court also concluded that neither Article 6 of the ECHR nor Article 39 of the Constitution establish a sacrosanct right of appeal. The only right these provisions establish is that, in cases where a right of appeal does exist, the safeguards established in those articles must be implemented to ensure that the right to a fair hearing is not violated in the appeal proceedings. Mr Hung appealed the First Hall’s judgment to the Constitutional Court. He argued that contrary to what the First Court decided, the mere fact that he could submit requests for release from arrest without limit before the Court of Magistrates was not enough to constitute a fair hearing. He insisted that his complaint was not that he had no access to a court to request provisional liberty, but rather, that while the Attorney General had the right to have a decree reviewed by a different judge (that is, a judge of the Criminal Court), the appellant could only submit his requests before the same magistrate hearing the case, with the obvious disadvantage that there is no way for that magistrate’s decision to be reviewed by another, higher court. At this point however, the proceedings against the applicant in the Court of Magistrates as a Court of Criminal Judicature had been concluded, and Mr Hung was found guilty. However, the Constitutional Court noted that all the time he had spent in preventive arrest had been deducted from his ultimate punishment of imprisonment. Therefore, the Constitutional Court concluded that the appeal was reduced to a purely academic exercise which, in practice, could lead nowhere. The Constitutional Court nevertheless disagreed with the appellant, hence confirming the First Court’s stance. In sum, the Constitutional Court identified that a decision regarding a request for release from arrest does not involve a decision on a “criminal charge” since it is separate from the merits of the accusations levied against the accused. Therefore, a request for bail is not a decisive factor regarding the merits of those accusations, and consequently, Article 6 of the ECHR does not apply in such cases. By extension, the ‘equality of arms’ principle was equally non-applicable in such a scenario. Consequently, the Court asserted that the appellant had suffered no violation of his right to a fair hearing. Ultimately, the ‘equality of arms’ principle keeps the courtroom from becoming a lopsided duel: each side gets a fair shot. While its reach is not endless and it is not a silver bullet, it remains an important legal safeguard within the notion of a ‘fair trial’. The judgment is final and cannot be appealed further. Dr Arthur Azzopardi is managing partner, and Alec Carter is paralegal at Azzopardi, Borg and Associates Advocates.