Over the past few weeks, we have been regaled with declarations by the Prime Minister that were little more than smoke and mirrors to create confusion about the legal situation concerning the death of an immigrant in detention some years back.

Joseph Muscat did not bat an eyelid when resorting to (possibly despicable) means to justify (perhaps loathsome) ends.

After sitting pretty for more than 20 months on the Valenzia report, concluded in December 2012, which looked into the death of an immigrant while in detention, the Prime Minister accused a former minister of abdicating his duties by not allowing disciplinary steps to be taken pending the outcome of police investigations.

Let us review, in brief, the legal milieu that surrounds the death of any person held in detention by the armed forces.

Any human life is priceless and, no doubt, any proven dereliction of duty on the part of those responsible for the custody or detention of any person, leading to death or injury, warrants the full force of the law to be applied.

The Armed Forces of Malta Act provides for penalties for a wide range of disciplinary offences committed by AFM members. Almost all of them are subject to lengthy terms of imprisonment after court martial.

Likewise, the Criminal Code prescribes imprisonment for the offences of bodily harm and homicide, whether voluntary or involuntary.

A person has the right not to be tried twice for the same offence

What happens when an AFM member acts in such a way as to fall foul both of the law governing the armed forces and the Criminal Code? Can he be accused or be made to undergo proceedings under both laws? This is the crux of the issue.

The answer is a resounding no.

A crucial tenet of our Constitution (article 39 (9)), the European Convention for Human Rights and the Criminal Code (article 527) is the right not to be tried twice for the same offence. This is the rule of double jeopardy, as it is popularly known.

In March 2001, I was legal counsel to a person who, along with two other persons, was arraigned and accused, in terms of the Criminal Code, of having escaped from the young offenders prison (known as YOURS). Some months earlier, disciplinary proceedings had already been taken against them, according to prison regulations, and they were found guilty, losing a good number of days of remission.

In other words, as a result of those disciplinary steps, they had already suffered a deprivation of a certain number of days of freedom. I pleaded double jeopardy and asked for the matter to be referred to the Constitutional Court.

In December 2003, the First Hall of the Civil Court, in its constitutional jurisdiction, found in favour of my client and declared that his right, as protected by the European Convention, not to be tried twice for the same offence was breached by his arraignment.

The Commissioner of Police appealed and the Constitutional Court, the highest court of the country, on January 10, 2005 confirmed the breach of the right not to be tried twice, leading to the acquittal of the accused from that particular offence.

Essentially, the courts, in both instances, declared that once the essential element of the consequences of the disciplinary process was the loss of liberty they were not mere disciplinary procedures but effectively criminal proceedings.

The Constitutional Court referred to case law of the European Court of Human Rights, in particular to Engel and Others vs Netherlands (1976), concerning disciplinary measures taken against soldiers, which were deemed to be, in essence, criminal charges: “when a serviceman finds himself accused of an act of omission allegedly contravening a legal rule governing the operation of the armed forces, the State may employ against him disciplinary law rather than criminal law...”

Consequently, the State cannot take both disciplinary steps which essentially are of a criminal nature (as per the Armed Forces of Malta Act) and criminal steps (as per the Criminal Code).

The State must opt either for one or for the other. Otherwise, the rule of double jeopardy would be breached, leading to the very probable acquittal of the accused in the second set of proceedings.

Unfortunately, the Prime Minister is apparently not aware of or has chosen to ignore the implications of the legal situation.

If it is a case of choosing to ignore the legal situation, it would not be unfair to say that he is deliberately ignoring the legal realities to gain political mileage, with a cynicism that is breathtaking, if not wholly unexpected given the way he plays to the gallery.

jason.azzopardi@gov.mt

Jason Azzopardi is shadow minister for citizens’ rights, justice and democracy.