Jurists insist that accused people should be granted bail in all but the most exceptional circumstances. But bail statistics for Maltese courts in 2011 say otherwise.
Being foreign is not grounds for denying bail
Last year, courts granted bail in 168 cases but denied it in 196 others, with members of the judiciary more inclined to deny bail when faced with foreign defendants.
Of the 168 people granted bail, more than 82 per cent were Maltese. When bail was denied, the nationality gap was far less pronounced, with 56 per cent being Maltese and the remaining 44 per cent foreign.
EU citizens up for bail before a Maltese court would do well to cross their fingers: while four Romanians were granted bail, defendants from 10 other EU states remained locked up.
These figures did not alarm Dr Bonello.
“Justice can never be turned into a mathematical equation. Although there is a legal principle of personal liberty being the rule, magistrates and judges have to use their own discretion when deciding whether or not to grant bail.”
The former ECHR judge was not surprised by the preponderance of foreigners being denied bail. “A local has strong ties to Malta, from their job to friends and family. Fleeing the island is unlikely in such a situation.
“Foreigners often have no such ties holding them back, and the temptation to abscond may prove too great.”
But that argument was contested by criminal lawyers Stefano Filletti and Giannella de Marco, who both argued that a foreign passport was not grounds for denying a person bail.
Dr Filletti said: “Many foreigners have no ties to Malta and therefore no guarantors.
“But being foreign is not grounds for denying someone bail.
“There are several people who, when accused of a crime, have insisted on staying put to clear their name.”
A person charged with a crime had their travel documents confiscated, Dr Filletti added.
“There’s nothing positive in these bail statistics. Given the legal principle, one would expect a different result. If anything, the numbers just go to show how mistaken the public perception of bail being granted willy-nilly actually is,” he noted.
Dr de Marco said: “Local courts are quick to deny bail to foreigners, including those from Schengen area countries.
“It’s unheard of in many jurisdictions and it’s also earning Malta negative attention from international rights watchdogs.”
Dr Giglio was wary of reading too much into the statistics, although he agreed the numbers suggested that courts were sometimes being overly cautious in granting bail.
“Courts have it especially hard when faced with foreigners not residing here, balancing their right to bail with their lack of ties to Malta.
“But the fundamental principle of liberty being the rule remains paramount.”