Personal liberty ‘is the rule not the exception’

Some of Malta’s finest legal minds have applauded the constitutional court for reaffirming the principle that setting unrealistic bail demands was tantamount to denying a person their right to liberty.

Bail cannot be set at levels the accused cannot afford. It has to be realistic – what is ‘realistic’ for a multi-millionaire may not be for you or me

Mr Justice Anthony Ellul earlier this month ruled the authorities had denied a Nigerian man his rights by insisting on a €6,000 bail pledge when he could manifestly not afford it.

As a result, the man was forced to remain behind bars as he awaited trial, purely because he had no way of meeting the bail conditions.

Mr Justice Ellul said he found it hard to believe the only way the authorities could keep track of the man was by keeping him locked up, given Malta’s size and limited accessibility.

The judgment reinforced an important principle ensuring justice was done, said former European Court of Human Rights judge Giovanni Bonello.

“Bail cannot be set at levels that the accused can never afford,” Dr Bonello explained.

“It has to be set at realistic levels – and what is ‘realistic’ for a multi-millionaire may not be for you or me.”

Giving the judgment his seal of approval – “I agree with it wholeheartedly” – Dr Bonello hoped the courts would take heed of its rulings.

“Hopefully this will discourage courts from setting bail at extremely high levels. Personal liberty is the rule, not the exception.”

That appeal to legal principle was echoed by criminal lawyer Stefano Filletti, who stressed that an individual was presumed innocent until proven guilty.

“Police have to give valid reasons to objecting to bail. It’s not enough for them to say that a person may abscond, or tamper with evidence or commit another crime. There has to be reasonable grounds to believe that they will,” he explained.

The judgment was deemed “superb” by criminal lawyer Giannella de Marco, who railed against Maltese courts’ propensity to deny bail (see box).

“It is up to the prosecution to make the case for preventive arrest, but in many cases things happen the other way round, with the defendant on the back foot, making the case for why they deserve bail. It’s preposterous.”

Criminal lawyer Joe Giglio was pleased with the judgment, which he said re-established a long-standing legal principle.

He was also complimentary of the manner in which the magistrate’s court had agreed to refer the case to the constitutional court for guidance.

“The circumstances of the case meant some clarification was needed. Now, given the judgment, I imagine similar cases in the future won’t have to be referred to the constitutional court,” Dr Giglio added.

Implications for asylum seekers?

Mr Justice Ellul’s judgment also dismissed suggestions that imprisonment was the only realistic way of keeping track of individuals.

His ruling quoted verbatim from a key 2010 European court judgment, which found the Maltese government guilty of violating an Algerian man’s right to liberty when it kept him in detention after rejecting his asylum application.

Pressure groups that oppose the mandatory detention of asylum seekers often cite the judgment as evidence of the policy’s illegality.

And although Mr Justice Ellul’s judgment had little to do with mandatory detention of migrants, his citation of the ECHR judgment interested the migrant-focused NGOs.

“Although it’s not relevant from a juridical point of view, it’s certainly interesting,” noted Aditus director Neil Falzon, “especially seeing as the necessity of keeping tabs on asylum seekers is one of the main reasons given for detaining them.”

Jesuit Refugee Service director Katrine Camilleri was similarly pleased.

“To my knowledge it’s the first time local courts have acknowledged the European court’s reasoning in this regard. It’s certainly encouraging.