Joe Brincat: “Hefty bail amounts are discriminatory."

Malta’s system of detaining suspects without trial has barely improved since the early 1800s, according to former justice minister Joe Brincat.

“When British Governor Thomas Maitland came to Malta in 1814, he said people were charged and detained without any idea when they would be tried. He did his best to change the situation but old habits die hard,” Dr Brincat said.

He was commenting on the recent European Court of Human Rights judgment in the Tomas Mikalauskas v Malta case, in which the State was found guilty of breaching the Lithuanian’s right to have the lawfulness of his imprisonment decided speedily.

It was also found guilty of not bringing the accused to trial within a reasonable time or to release him pending trial.

Mr Mikalauskas was arrested on suspicion of cannabis possession and trafficking in September 2009. He spent 22 months in prison without trial because he could not afford to pay the bail conditions imposed by the court.

“The Mikalauskas v Malta judgment should be an eye-opener,” Dr Brincat told Times of Malta.

“There are people, mostly foreigners, who spend up to five years in preventive custody, only to walk free after the trial. Hefty bail amounts are discriminatory. The rich can afford it or have friends who can afford it. The poor have to stay behind bars,” he added.

He referred to the part of the judgment that said Mr Mikalauskas was granted bail “in theory”.

“Human rights should be effective not theoretical,” Dr Brincat said.

Mr Mikalauskas spent 10 and a half months in Corradino prison before he was granted bail against a deposit of €50,000 and a personal guarantee of €15,000.

Following two unsuccessful requests to have the sums lowered, on February 22, 2011 the deposit was reduced to €40,000 but the personal guarantee raised to €60,000.

It took another two months for the deposit to be reduced to €30,000 and the personal guarantee to €15,000. The applicant finally managed to satisfy these conditions and was eventually released on July 7, 2011, almost a year after he had been granted bail.

Mr Mikalauskas is contesting his innocence and the criminal proceedings against him are still pending.

Dr Brincat pointed out that suspects in Italy were released on bail automatically after the lapse of statutory time, without the need of a deposit or guarantor.

In Malta, the limits for pre-trial detention without bail are set at between 12 and 20 months, depending on the seriousness of the alleged crime. However, the financial guarantees and other bail conditions are at the discretion of the court.

Dr Brincat recalled cases of suspects spending more time in preventative custody than serving the jail term decided by the court.

“A person is still considered innocent until proven guilty. Keeping a person in prison is only fully justified after the trial and not before. We seem to act on the presumption of guilt,” he said.

Dr Brincat feels Strasbourg is more likely to recognise violations than the Maltese justice system. “It is not only legislation that can change the situation. There must be a change of mentality,” he said.

“I remember a former high-ranking police officer who – for the slightest incident – advised his subordinates to charge the suspect with attempted murder. Thus, the suspect would not easily be released on bail. The outcome of the trial then becomes irrelevant.”

The ECHR judgment is not yet final as both parties have three months to request that the case is referred to the Grand Chamber of the Court.