Man in fraud case demands to be discharged

A former Public Transport Association secretary, charged with defrauding government departments, has filed an application claiming that he ought to be discharged because his right to a fair hearing had been breached.

In an application filed before Magistrate Tonio Micallef, Alphonse Abela explained that he had been arraigned and charged with defrauding the Education Department and other governmental authorities of some Lm89,000 between January 2000 and December 2001.

In April 2003, the Magistrates' Court discharged Mr Abela after ruling there were not enough reasons for him to be indicted because the evidence produced by the prosecution did not link him to fraud.

A month later, Mr Abela was rearrested after the Attorney General filed a warrant of arrest, on the strength of article 433 of the Criminal Code, in which he contested the acquittal.

Article 433 laid down that the Attorney General could issue a warrant for the arrest of any person discharged by the Magistrates' Court if he and a judge agreed there were sufficient grounds for an indictment to be filed against that person.

Then, this February, the Constitutional Court (in the case against Joseph Lebrun) declared that article 433 was likely to breach a person's right to a fair hearing.

On the strength of that ruling, Cabinet on April 16 approved a memo by the Justice Minister on changing article 433. A week later, the House of Representatives approved the Bill amending the Criminal Code.

Under the amendment, that came into force on April 27, the procedure had to take place in the open and the person involved would be able to contest his re-arrest. The amendment also laid down that the change would be applicable to all cases in which a person had been re-arrested by virtue of article 433 and gave the prosecution in those cases a month (from April 27) to regulate its position.

Mr Abela noted that, once a month had passed and the prosecution failed to regulate its position, all the procedures since the arrest warrant was issued in May 2003 were in breach of his right to a fair hearing.

He demanded to be placed in the position prior to the arrest warrant was issued, that is, that he be acquitted.

Lawyer Franco Debono signed the application.