Judges explain why prisoners could not be tried twice

An appeal filed by the Police Commissioner from a constitutional judgment of the First Hall of the Civil Court has been dismissed by the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

This judgment was delivered following a constitutional reference made in the course of criminal proceedings filed by the police against Anthony Zammit, John Woods and Ahmed Esawi Mohamed Fakri.

The court heard that on June 7, 2000 the three men, all of whom were serving prison sentences in Malta, were found to be missing. They were discovered, a few days later, in Rabat.

All three were charged before the Prison Disciplinary Board and were found guilty of having destroyed or damaged prison property, with absenting themselves from prison, with escaping from prison and with inciting other persons to commit the same offences.

Various disciplinary measures were taken against them, including the loss of remission from prison sentences they were serving or would be given in future.

Zammit and Esawi appealed to the Appeals Tribunal which, in July 2000, partially upheld their complaint and reduced their loss of remission.

In March 2001 the three men were charged before the Magistrates' Court with a number of crimes, including escaping from prison. They were further charged with the theft of tools from prison.

In April 2003 Woods filed an application before the Magistrates' Court as a court of criminal judicature requesting a constitutional reference to the First Hall of the Civil Court on the grounds that, as he had already been punished for the escape by loss of remission, the criminal proceedings against him would be in violation of his right to a fair trial and to the right not to be tried again for the same offence. The Magistrates' Court referred the matter to the First Hall of the Civil Court.

In December 2003 the First Hall of the Civil Court ruled that there was no violation of the three men's fundamental human rights as protected by the Constitution. The court, however, found a violation of their right not to be tried twice for the same offence, as protected by the European Convention of Human Rights. The Police Commissioner lodged an appeal from this judgment to the Constitutional Court.

The appellate court noted that the Police Commissioner contended that the proceedings against the three men in prison were disciplinary proceedings and, as such, distinct from criminal proceedings. According to the Police Commissioner, these disciplinary proceedings were the principal manner of maintaining discipline within the prison.

In its judgment, the Constitutional Court noted that the European Convention of Human Rights established that no person could be tried or punished more than once in criminal proceedings under the jurisdiction of the same state. One had, therefore, to examine whether the proceedings taken against the accused in prison, before they were charged in the Magistrates' Court, were simple disciplinary proceedings or whether they were, in reality, proceedings of a criminal or penal nature.

Judgments of the European Court of Human Rights had established criteria to determine whether proceedings were of a criminal nature or otherwise. These criteria were the classification of the charges under domestic law, the nature of the crime and the nature and gravity of the punishment.

In this casem Zammit, Woods and Esawi had been charged, within the prison, under provisions of the Prison Regulations that were clearly aimed at maintaining discipline within the prison. All three men had been found guilty of escaping from prison and condemned to the maximum loss of remission in terms of the regulations.

This loss of remission, which amounted to 365 days, had to be classified as a criminal punishment and not simply a disciplinary measure, as it implied loss of liberty.

The Constitutional Court therefore dismissed the appeal lodged by the Police Commissioner and confirmed the judgment of the First Hall of the Civil Court.

The appellate court also ordered that a copy of its judgment be served upon the Court of Magistrates that had ordered the constitutional reference.