CASE OF CALLEJA v. MALTA
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
7. The applicant was born in 1961 and is currently detained in Corradino Prison (Malta). 8. In November 1995 the applicant was arrested and charged with trafficking in dangerous drugs. On 15 May 1996, while he was in pre-trial detention, a fresh charge of complicity in attempted wilful homicide was brought against him. The applicant was accused of having tried, by means of an instruction issued to third parties, to kill Mr Richard Cachia Caruana, the personal assistant to the Prime Minister, on account of Mr Caruana's role in the separate proceedings on the charge of trafficking in dangerous drugs. The events in issue allegedly occurred before and on 18 December 1994. Expert forensic reports were submitted in January and February 1995. 9. The applicant was subsequently placed in detention on remand in connection with this new criminal charge also. 10. From the date of the applicant's arraignment (15 May 1996) until 13 August 1996, twenty-three hearings took place before the Court of Magistrates, acting as a court of criminal inquiry. A number of police officers, experts and witnesses, including Mr Joseph Fenech, an accomplice who had made a confession and had been granted a pardon, were cross examined by the parties. A number of objections were raised by the prosecution and the defence about the questions put by the other party. The court issued a ban on the publication of reports and articles about the proceedings before it. 11. On 13 August 1996 the Court of Magistrates appointed a graphologist and concluded that there were sufficient grounds for the filing of a bill of indictment against the applicant. 12. However, on 16 September 1996 the Attorney General asked the Court of Magistrates to re-open the proceedings in order to hear four witnesses, namely two other accomplices of the applicant, a doctor who had been on duty on the day the victim was admitted to hospital, and the graphologist appointed on 13 August 1996. On 30 September 1996 the court heard the first three witnesses. The two accomplices refused to give evidence in order not to incriminate themselves. The court revoked the appointment of the expert and asked the registrar to provide it with a new list of experts. 13. On 1 November 1996 the Attorney General again asked the court to reopen the proceedings and to explain the reasons for revoking the appointment of the expert; to identify handwriting experts, including foreign ones; and to hear all the evidence the police could adduce. 14. On 13 November 1996 the Court of Magistrates appointed a new graphologist, Mr Manfred Hecker. 15. On 12 December 1996 the Attorney General requested once again that the inquiry be re-opened. He asked that Mr Hecker and Mr Fenech be heard, the latter being requested to give explanations about the record of his interrogation by the police. Moreover, he asked that some documents previously exhibited be listed in detail, while other documents not already exhibited should be produced by the registrar. A hearing, during which Mr Fenech was examined, took place on 8 January 1997. 16. On 28 February 1997 the Attorney General requested that the inquiry be re-opened for the following matters: to correct a mistake in the records; to hear Mr Hecker; to produce various newspapers; to complete the appointment of another expert and have him produce some photographs; and to hear two new witnesses. 17. On 11 March 1997, after the examination of five witnesses, the hearing was adjourned as Mr Hecker was not in Malta. He gave evidence on 24 March 1997. 18. On 25 March 1997 the registrar informed the court that the evidence produced on 11 March 1997 had not been properly recorded and that the witnesses heard during that sitting should be summoned again. 19. On 30 April 1997 the Attorney General requested the re-opening of the inquiry in order to hear Mr Hecker and other witnesses, as well as the witnesses examined on 11 March 1997. With the exception of Mrs Lilian Zahra, who was abroad, the witnesses concerned were examined by the prosecution on 21 May 1997. Counsel for the defence, who was attending another trial, was not present and reserved his right to crossexamine the witnesses. At the Attorney General's request, on 30 July 1997 Mrs Zahra was examined. At the end of the sitting, the court returned the documents relating to the proceedings to the Attorney General. 20. The bill of indictment against the applicant for the charge of complicity in attempted wilful homicide was filed on 6 August 1997. 21. On 7 August 1997 the applicant was provisionally released on bail in relation to the charge of trafficking in dangerous drugs. However, the applicant could not leave the prison as he was still required to remain in pretrial detention on the charge of complicity in attempted murder. 22. In two separate notes of 1 September 1997 the applicant filed several preliminary pleas, challenging the validity of the bill of indictment and the admissibility of a number of documents and prosecution witnesses. The applicant also requested that 146 witnesses be heard on his behalf. 23. On 5 September 1997 the Attorney General contested the admissibility of certain documents and witnesses referred to by the defence. 24. A number of hearings on the preliminary pleas took place before the Criminal Court. In particular, the applicant's case was discussed on 22 and 27 October 1997. On 30 October 1997, the case was adjourned until the following day because counsel for the applicant failed to appear. The case was further discussed on 31 October and 1 December 1997, then postponed until 15 December 1997, on which date the applicant informed the court that his counsel had fallen ill. The case was adjourned first until 7 January, then until 6 February 1998. On that date and on 13 February 1998 the Criminal Court heard oral submissions from the parties. 25. The following hearing, initially scheduled for 2 March 1998, was postponed until 30 April 1998 on the ground that the court needed more time to deliberate. On 30 April 1998 the Criminal Court delivered its judgment on all the preliminary pleas. Both the defence and the prosecution declared that they intended to appeal. The case was adjourned pending the decision on the parties' appeals. 26. On 6 May 1998 the applicant appealed against the Criminal Court's judgment of 30 April 1998. The prosecution did not appeal. 27. On 9 August 1999 the Court of Criminal Appeal set the appeal down for hearing on 7 October 1999. The hearing was then adjourned until 25 October 1999 on the ground that one of the sitting judges was ill. On 25 October 1999 the parties made their oral submissions. The next hearing, initially scheduled for 4 November 1999, was postponed first until 9 November 1999, then until 25 November, and finally until 11 January 2000 at the request of the defence, on the ground that the accused had appeared in court unassisted. The Court of Criminal Appeal heard further oral submissions by the parties on 11 January and 7, 9 and 20 March 2000. 28. On 3 May 2000 the Court of Criminal Appeal partly quashed the Criminal Court's judgment of 30 April 1998. 29. The case concerning the charge of complicity in attempted wilful homicide was resumed before the Criminal Court. A hearing was scheduled for 26 May 2000 in order to agree on a date for the trial. However, the proceedings were adjourned at the defence's request. 30. On 2 June 2000 one of the applicant's counsel withdrew from the defence team. The Criminal Court observed that all that needed to be done was to appoint a date for the trial by jury. However, the applicant's remaining lawyer requested an adjournment in order to check his other professional commitments and to consult with his client. On 4 and 28 July 2000 the proceedings were postponed on the ground that the applicant's counsel was ill. 31. On 31 July 2000 the defence challenged the President of the Criminal Court – Mr Justice Vincent Degaetano – on the ground that he had participated in the trial of Mr Ian Farrugia, one of the applicant's coaccused. The parties made oral submissions on this plea, and the court ordered the applicant to submit, before 31 August 2000, a note indicating the legal provisions on which he was relying and the decisions taken by the judge in question during the trial of Mr Farrugia. The court proposed to adjourn the case until 11 September 2000, on which date a decision on the challenge should have been taken. However, the applicant's counsel objected that he would be away from Malta during the whole month of September. The proceedings were therefore postponed until 2 October 2000, on which date the Criminal Court rejected the challenge. 32. The applicant declared his intention to appeal. Observing that there was no right to appeal against its ruling, the Criminal Court provisionally fixed the date of the trial by jury for 2 May 2001. The applicant's counsel observed that in view of the declaration made by the defence, the date of the trial should not have been fixed and the proceedings should rather have been adjourned sine die. 33. On 5 October 2000 the applicant appealed against the decision of 2 October 2000. 34. The hearing, initially scheduled for 11 January 2001, was held on 27 December 2000, on which date the Court of Criminal Appeal adjourned the proceedings until 23 January 2001 in view of the absence of the applicant's counsel. The latter subsequently informed the court that he had not been notified of the new date of the hearing. The Court of Criminal Appeal also observed that the Attorney General had not submitted a reply in writing to the applicant's appeal. The Government, with whom the applicant disagreed, emphasised that submissions were normally made orally and that the Attorney General was in no way obliged to file a written reply. 35. On 23 January 2001 the accused, who had fallen ill, did not appear. In the presence of his legal counsel, the court heard evidence from a doctor as to the applicant's state of health. A medical certificate was exhibited. 36. By decision of 25 January 2001 the Court of Criminal Appeal dismissed the applicant's appeal. It observed that the accused's allegations were based only on suppositions and unproven gratuitous assertions which were devoid of legal value. 37. On 4 April 2001 the applicant was convicted and sentenced to fifteen years' imprisonment and to a fine of 30,000 Maltese liras (approximately 72 273 Euros) in respect of the charge of trafficking in dangerous drugs. He then started to serve his sentence for that offence. The earliest date of the applicant's release was fixed at 19 November 2006. This calculation was made by deducting from the final sentence the period that the accused had spent in pre-trail detention. 38. After having heard in camera the views of the defence and the prosecution, on 16 April 2001 the Criminal Court decided to adjourn the trial by jury on the charge of complicity in attempted murder until 5 November 2001. It considered, in particular, that it was not wise to commence the new trial at a date too close to the termination of the other proceedings against the same accused. The witnesses to be heard on behalf of the prosecution were summoned to appear on 5 November 2001. 39. However, on 22 October 2001 the applicant instituted proceedings before the First Hall of the Civil Court exercising its constitutional jurisdiction, relying on a violation of Article 6 of the Convention and Article 39 of the Constitution of Malta. He submitted, in particular, that he could not be judged by the same magistrate – Mr Justice Degaetano – who had participated in his previous trial for trafficking in dangerous drugs and in the trial of two persons accused of complicity in the offence with which he was charged. He also complained about the extensive media coverage of his trial and about the negative opinions expressed about him and his innocence by the Prime Minister, by the Attorney General and by certain police officers. 40. On 25 October 2001 the applicant requested the Criminal Court to stay the proceedings pending the decision on his constitutional application. The Attorney General replied that that request should be rejected as constituting an abuse of process. 41. In an order of 1 November 2001 the Criminal Court noted that the date of the jury trial had been known to the applicant by 16 April 2001. However, it was only two weeks before the trial was scheduled to commence that the accused had filed his constitutional application. The Criminal Court noted, moreover, that the fact that the constitutional application was pending did not stricto jure oblige it to adjourn the trial. However, if the trial were to be continued, the Civil Court and, in the event of an appeal, the Constitutional Court might have felt in some way pressed to give a ruling on the applicant's complaint in an unreasonably short time (that is, before the end of the trial). Such a situation should, if possible, be avoided and it would have been unnecessarily costly to have the trial by jury held more than once. The Criminal Court therefore decided to adjourn the hearing until 11 February 2002. Further sittings were held before the Criminal Court on 10 June and 4 November 2002 and on 7 January and 1 April 2003; they were all adjourned pending the outcome of the applicant's constitutional application. The next hearing was fixed for 7 July 2003. 42. The date of the first hearing before the First Hall of the Civil Court was fixed for 30 October 2001, on which date the applicant produced several documents. The proceedings were adjourned in order to examine those documents. In a note of 21 November 2001 the applicant stated that one of his counsels had been required to go abroad on a university assignment and would not be present at the hearing on 23 November 2001. The Civil Court reserved its decision on this matter. 43. On 23 November 2001 the applicant appeared, assisted by his other counsel. He declared that he needed to produce in evidence copies of articles which had appeared in local newspapers. The case was adjourned until 9 January 2002, on which date the court requested further information from the applicant. The hearing of 1 February 2002 was postponed at the Attorney General's request. On 15 February 2002 the court adjourned the case in order that the applicant could conduct inquiries to verify the facts concerning a video recording exhibited by him. 44. In a note of 1 March 2002 the applicant pointed out that the recording in issue did not concern a political debate, as he had initially stated, but a press conference. On 15 March 2002 he exhibited an audio recording of the political debate in question and declared that he had no further evidence to produce. The Attorney General requested the authentication of the document exhibited. 45. On 26 April 2002 a witness on behalf of the applicant appeared in order to authenticate the relevant documents. The case was adjourned first until 31 May 2002, then until 5 July 2002 for final oral submissions by the parties. The hearings of 11 October, 15 November, 6 and 16 December 2002 and 10 January 2003 were adjourned as the court required more time for deliberation. 46. On 20 January 2003 the First Hall of the Civil Court dismissed the applicant's application. 47. On 29 January 2003 the applicant appealed against that judgment to the Constitutional Court. 48. On 12 February 2003, the date of the first hearing, Mr Justice Degaetano, who presided over the Constitutional Court, withdrew from the case. A substitute judge was appointed and the case was adjourned until 12 March 2003 for oral submissions by the parties. 49. On 18 June 2003 the Constitutional Court dismissed the applicant's appeal. 50. On 7 July 2003 the Criminal Court set 5 January 2004 as the date for the trial on the merits of the charge of complicity in attempted murder. The applicant declared that he intended to bring before the European Court of Human Rights the issues raised in his constitutional complaint. 51. On 1 February 2004, the jury delivered a verdict of not guilty with respect to the charge of complicity in attempted murder. 52. In the course of the proceedings against him, the applicant applied for provisional release on bail on several occasions (3 October 1997, 3 February, 18 June and 27 October 1998, 27 August 1999, 14 and 15 December 2000). His requests were rejected by the Criminal Court and by the Court of Criminal Appeal on 24 October 1997, 16 February, 14 July and 11 November 1998, 27 September 1999 and 21 December 2000, after having held hearings at which the parties were able to make their oral submissions. 53. The Criminal Court was not persuaded that there was no danger that, once released, the applicant would not try to interfere with evidence or in any other way try to obstruct the course of justice with regard to his case. It referred, in particular, to the extraordinary gravity of the charges, which showed the manifest social danger posed by the applicant, who might commit further offences against the person, including offences of bodily harm. In this connection, it was observed that the identity of the witnesses had become known to the applicant. There was, moreover, a danger that the latter might try to abscond, making use of the contacts he had abroad, in order to avoid the heavy punishment which was likely to be inflicted on him in the event of his conviction. 54. The Court of Criminal Appeal considered that the applicant's situation had not significantly changed and that no new element justifying a departure from the previous findings had been submitted. In particular, it considered that the time that had elapsed since the beginning of the applicant's detention was not substantial enough to conclude that the length of the deprivation of liberty in issue was unreasonable. 55. In the meantime, on 30 March 1999, the applicant, alleging that his lengthy detention and the continued refusal of bail had infringed his rights under Articles 5 and 6 of the Convention, introduced a constitutional complaint before the First Hall of the Civil Court. He observed, in particular, that his deprivation of liberty was based, inter alia, on the risk of his tampering with evidence, a risk which, in the Attorney General's submission, had become even more serious because his accomplices were free and the identity and nature of the prosecution evidence and witnesses had become known to the accused. In the applicant's opinion, however, those fears were unfounded and the danger referred to by the authorities could in any case have been avoided by adopting the necessary precautionary measures, such as adequate surveillance by the police, with the possibility of house arrest. Moreover, the evidence of the prosecution had become known to the applicant by right in order to enable him to prepare his defence; that fact could therefore not be used against him to justify a violation of his other fundamental rights. 56. The Attorney General and the Commissioner of Police filed a memorandum in which they applied for the applicant's complaints to be dismissed. They pointed out that the offence attributed to the applicant was punishable by up to twenty years' imprisonment, and that this element created an incentive for the accused to try to tamper with evidence and also to abscond, possibly making use of the foreign contacts which he manifestly had. Moreover, the nature of the offence showed that the applicant was a danger to society and that there was a risk that he might commit other offences. Finally, the danger of his interfering with evidence was real, as was shown by the fact that after he had given evidence, a witness in his case had been attacked by two unknown persons. 57. Four hearings took place before the First Hall of the Civil Court on 9 and 14 April and 3 and 12 May 1999. On the last-mentioned date, the Civil Court authorised the applicant to file submissions concerning a non exhaustion plea raised by the respondents. This note was filed on 27 May 1999. 58. On 22 June 1999 the First Hall of the Civil Court dismissed the applicant's application. With reference to the case-law of the European Court of Human Rights, the Civil Court noted that the prolonged detention of a person who was presumed innocent but was suspected of having committed an offence should be justified in the public interest and that an accused deprived of his liberty had the right to have the investigations and trial conducted within a reasonable time. In the applicant's case, the Court of Criminal Appeal had taken into account the period of time spent by the applicant in detention in view of all the relevant circumstances, notably the nature and gravity of the charges, the danger of his tampering with evidence and the risk of his absconding. Moreover, the applicant's case was particularly complex, regard being had to the number of witnesses and experts involved in the investigations and to the pleas submitted by the parties, and it could not be said that the prosecution had failed to show diligence in the conduct of the investigations. The time that had elapsed from the beginning of the investigations could not, therefore, be considered unreasonable. Finally, the fact that the applicant had been denied bail was not prejudicial to the presumption of innocence, as the decisions in this regard did not reflect an opinion as to his guilt. 59. On 2 July 1999 the applicant appealed against the judgment of 22 June 1999 before the Constitutional Court. 60. The first hearing took place on 16 July 1999. On 29 July 1999 the applicant challenged two of the three sitting judges. A judgment on this issue was given on 4 August 1999. The two judges in question withdrew from hearing the case, which was adjourned until 2 September 1999, on which date the parties made oral submissions. On 15 October 1999 the applicant requested leave to produce a decision given by the Court of Criminal Appeal on his application for bail. This request was subsequently served on the respondents, who on 19 October 1999 declared that they did not oppose bail. The hearings of 20 October and 22 November 1999 and of 12 January and 14 February 2000 were adjourned because the Constitutional Court needed more time for deliberation. On 22 February 2000 the court observed that the members of the family of one of the sitting judges had fallen seriously ill and that this fact prevented it from taking a decision immediately; however, the case had been given the priority that it deserved. 61. On 8 March 2000, at the Constitutional Court's request, the parties made submissions on the point as to whether a decision on the issue under Article 5 of the Convention was required. 62. On 29 March 2000 the Constitutional Court upheld the decision of the First Hall of the Civil Court in so far as it concerned the length of the criminal proceedings against the applicant (Article 6 § 1 of the Convention). However, the Constitutional Court pointed out that the applicant had also complained under Article 5 of the Convention, alleging that the grounds for his detention had weakened with the passing of time. Even if the accused had not explicitly quoted this latter Article in his final submissions, thus misleading the first-instance court, his complaint constituted a separate grievance on which the Civil Court should have made a specific ruling. Therefore, the Constitutional Court remitted the facts of the case to the Civil Court, instructing the latter to examine this complaint. 63. Proceedings were resumed before the First Hall of the Civil Court, and a hearing was scheduled for 17 April 2000. On 3 May 2000 five witnesses appeared on behalf of the respondents. They testified about incidents experienced by a witness who had testified against the applicant in the pretrial investigation proceedings and by the daughter of that witness. 64. On 5 May 2000 the President of the Civil Court withdrew from the case. A substitute judge was appointed on 16 May 2000, but he also had to withdraw as he was one of the judges who had denied one of the applicant's applications for bail. Another substitute judge was appointed on 25 May 2000, and a new hearing was set down for 14 June 2000. Other witnesses were heard on 3 and 24 July 2000. On 24 August 2000 the applicant waived the right to cross-examine those witnesses, but requested leave to file written observations. The latter were filed on 3 October 2000, seven days after the expiry of the time allowed by the Civil Court. The respondents filed their written reply at the hearing of 31 October 2000. On 8 November 2000 the case was adjourned for judgment. 65. On 14 December 2000 the First Hall of the Civil Court declared that the overall duration of the applicant's pre-trial detention had infringed Article 5 § 3 of the Convention and that the applicant was entitled provisionally to be released under conditions guaranteeing his appearance at the trial. The determination of these conditions was left to the discretion of the Criminal Court. 66. The Civil Court first underlined that a period of time held to be reasonable under Article 6 § 1 of the Convention could be considered excessive under Article 5 § 3, as the criteria laid down in the latter provision, which concerned personal liberty, were more rigorous. Moreover, it was clear that the passing of time could not but aggravate the prejudicial effects that the pre-trial detention had had on the applicant's situation. 67. The Civil Court further noted that the proceedings had not been conducted in a vacuum. In fact, the inquiry had been closed, the bill of indictment had been issued and the preliminary pleas had been decided. On the other hand, it should be kept in mind that the applicant had a right to institute all the proceedings and to lodge all the complaints he deemed necessary for the defence of his interests, even if this might prolong the criminal proceedings. 68. As to the grounds justifying the applicant's continuing detention, the Civil Court observed that the risk of his tampering with evidence appeared to subsist regardless of whether or not he remained under arrest. In fact, the Attorney General himself had mentioned that certain witnesses had already started to alter the evidence which they had given during the inquiry. Moreover, all the evidence against the applicant had already been gathered and heard on various occasions by the national courts, and the danger of interference with the course of justice was likely to be reduced as the investigations progressed. 69. As to the risk of committing new offences, the Civil Court noted that the prosecution had not proved that the applicant was responsible for certain incidents in which a witness and his relatives had been involved. Furthermore, as the crimes of which the applicant was accused had been allegedly committed on the basis of instructions, it could be argued that the applicant constituted a threat to society even if he remained in prison. In any case, it appeared that the prosecution was inferring the applicant's dangerousness more from the gravity of the case than from any other evidence. 70. Finally, it was true that the applicant risked a heavy sentence and that he had been abroad several times in 1994 and 1995. However, it had not been proved that the applicant had tangible connections outside Malta which might facilitate his escape. He had, on the contrary, strong family ties in Malta. Keeping in mind that the applicant had already spent four and a half years in detention, and that this period would in any case have been deducted from his final sentence, the Civil Court concluded that the risk of his absconding could be counterbalanced by adequate guarantees ensuring the appearance of the accused at the trial. 71. On 18 December 2000 the Attorney General of Malta and the Commissioner of Police appealed to the Constitutional Court against the judgment of 14 December 2000. 72. The first hearing took place on 27 December 2000. On that date all three judges composing the court withdrew from the case on account of their involvement in prior proceedings concerning the question of the applicant's release on bail. On the following day three new judges were appointed. The applicant then requested that the next hearing, scheduled for 12 January 2001, be fixed for an earlier date. A hearing was scheduled for 9 January 2001, on which date the parties made their oral submissions on the appeal. 73. On 23 January 2001 the Constitutional Court quashed the impugned judgment. It observed that the applicant's prolonged detention had been based on four grounds, notably the risk of contamination of evidence, the danger of his committing a new offence, the fact that he was a threat to society, and the danger that he might abscond or hide. In the Constitutional Court's view, each of these reasons was serious enough potentially to create an obstacle to the applicant's release. 74. The Constitutional Court noted that the prosecution had produced evidence demonstrating that the applicant had put pressure on individuals for the purpose of committing homicide on the basis of instructions. The risk of tampering with evidence was therefore a concrete one, especially at a stage where the applicant was aware of the content of the evidence and of the names of the witnesses. As to the risk of committing a new offence, the prosecution relied mainly on two incidents concerning a witness and his daughter. However, there was nothing to show that the applicant was responsible for those acts. On the other hand, evidence had been produced against the applicant in a separate set of criminal proceedings concerning a serious accusation of drug trafficking. 75. As to the possibility that the applicant might abscond, it was true that the longer his detention lasted, the more remote this possibility was. The fact that the applicant's family lived in Malta equally militated against the danger of flight. However, the seriousness of the charges brought against the applicant and the fact that he was about to face a trial by jury on charges of drug trafficking militated in the opposite direction. 76. It remained to be considered whether the time that had elapsed since the date of the arrest could neutralise all the other relevant factors justifying the applicant's deprivation of liberty. In this connection, it was noted that far from trying to speed up the proceedings, the applicant had caused a number of delays. For instance, when the Criminal Court had been ready to fix the date of the trial by jury, the applicant had challenged the judge, and from 13 September 1999 until 23 January 2001 his lawyers had demanded at least ten adjournments of the hearings, thus unnecessarily lengthening the proceedings. In particular, on 2 October 2000 the Criminal Court had provisionally scheduled the date of the trial by jury for 2 May 2001. Instead of objecting to this lengthy delay, counsel for the defence had asked why the Criminal Court was setting a provisional date for the trial instead of adjourning it sine die. In the Constitutional Court's opinion, this behaviour was difficult to reconcile with the applicant's declared wish to have his case heard within a reasonable time. 77. Even if it was preoccupied about the length of time that the applicant'Constitutional Court underlined that an accused person had every right to choose the best line of defence, but he did not have the right to lengthen the proceedings, under one pretext or another, or to employ such grounds in favour of his provisional release pending trial. 78. In the light of the above, the Constitutional Court found that the period of time spent by the applicant in pre-trial detention had not yet violated Article 5 § 3 of the Convention. It considered, however, that the applicant's application for bail should be allowed if a definitive date for the hearing of the trial was not fixed in due time after the Court of Criminal Appeal had ruled on the challenge to the judge presiding over the Criminal Court.