Three policemen and a bouncer who were cleared of an incident involving a French student – because of a prosecution error in the time – have been arraigned again over the same accusations.
This time, the correct time that the incident is alleged to have taken place has been included in the charge sheet. But the defence lawyers immediately cried foul, claiming the prosecution had blatantly disregarded their clients’ fundamental right not to be tried twice for the same crime and called on the court to throw out the case.
Police officers Ramon Mifsud Grech, 41, from Birkirkara, Jean Paul Vella, 24, from St Julians and Brian Tonna, 31, from Ħamrun, and bouncer Jonathan Micallef, 29, from Birkirkara, were accused of holding French student Jean-Oliver Mesrine against his will on October 25, 2009 in a Paceville bar.
They were also charged with damaging his camera while the policemen alone were accused of committing a crime they were duty-bound to prevent. The four were acquitted of all charges last April.
The prosecution dropped the original slight injuries charge because it was time-barred.
The case, according to the new charge sheet, took place at 3 a.m. on October 25 and not at 11 p.m. of the same day, as the prosecution had originally stated. Yesterday, defence lawyers immediately called for the charges to be dropped, quoting the law and various judgments to back their argument that people could not be tried twice for the same crime and that this amounted to double jeopardy.
One after another, the lawyers made their submissions as prosecuting officer Inspector Anthony Cassar listened.
According to police sources, the inspector had told colleagues the charge sheet mistake was genuine and should not blemish his 25 years of good service with the police force.
The defence lawyers then quoted case law, including constitutional judgments and judgments of the European Court of Human Rights. They even submitted a study of EU law on double jeopardy.
They argued that the principle applied here because this was the same case as the one thrown out by the court in April, had the same facts that led to that judgment and also the same circumstances which will require the court to once again hear the same witnesses.
On its part, the prosecution, led by Superintendent Dominic Micallef, argued that the change of time meant this was a different case altogether. Legally, he said, it was a different incident because it took place at a different time.
Magistrate Neville Camilleri will rule on these submissions in November.
French student Jean-Oliver Mesrine alleged the uniformed policemen beat him up at a Paceville bar. A scuffle broke out after he snapped a photo of the policemen as they drank at the bar, something he described as being “unusual”.
This irked the policemen so they tried snatching the camera from his hands, allegedly breaking it in the process.
The release of the three policemen because of the error had caused a public outcry, with Justice Minister Chris Said calling for an investigation and President George Abela saying those found to have made the mistake should shoulder responsibility for it.
It came in the wake of another mistake which let a former priest off the hook on a child rape charge. That time the error was in relation to the place where the alleged crime had occurred.
In fact, this case was mentioned in court yesterday as an example of how the prosecution should have corrected the error in time prior to judgment.
Lawyers Manwel Mallia, Arthur Azzopardi, Peter Fenech, Lena Sammut, Giannella de Marco, Gianluca Caruana Curran and Larry Gauci appeared for the accused.
Ne bis in idem
Double jeopardy is known in legal jargon as the ne bis in idem principle – that no one who had already faced criminal proceedings (both if found guilty or cleared of the charges) can face a fresh criminal case over the same crime.
This principle is listed in an article in the Constitution which gives a person the right to a fair hearing within a reasonable time and by an independent and impartial court.
It also forms part of the European Convention of Human Rights.