A man fighting to be released from jail for sexually abusing his daughter after his estranged wife was charged with making up the story remains behind bars notwithstanding three judicial applications, according to his lawyer.

It was a rollercoaster day of emotions for the man yesterday with his lawyer, Tonio Azzopardi, saying many legal obstacles were being created to deny his client an interim measure in which he would be released from arrest based on irrefutable evidence of his innocence. The man has now been in prison for almost 400 days.

Dr Azzopardi acknowledged that the courts did not have the power to overturn a wrong conviction, which was unacceptable in a democracy.

Speaking to Times of Malta, Dr Azzopardi said: “In a democracy it is unacceptable that the State does not have the means to address a situation where a man whose innocence is backed by evidence remains behind bars.

“This is unacceptable and the State has to find a solution because it is putting itself in a position where it is responsible for a breach of fundamental rights according to article 5 of the European Convention that gives the right to personal freedom.”

The legal battle to get the man – who is not being named to protect the alleged victim – released from prison began on Wednesday when Dr Azzopardi filed an application claiming there was a miscarriage of justice. This application was submitted after the man’s estranged wife was charged with perjury.

Dr Azzopardi said the courts knew to what extent the man had protested his innocence.

The jailed father’s lawyer Tonio Azzopardi. Photo: Chris Sant Fournier

He said it was also known that gynaecological examinations on the girl proved she was still a virgin and intact, in spite of her claims that the man had sexually abused her five times.

The girl, who was seven at the time the alleged abuse occurred and is now 20, recanted her original version of events during a magisterial inquiry recently which led to her mother being arraigned earlier this week.

In deciding the first request to be released, Magistrate Aaron Bugeja noted that the man had been legitimately found guilty by a magistrate in 2011. The judgment was then confirmed on appeal in 2013. Also, although accused, his estranged wife had not yet been found guilty of committing perjury. Furthermore, he was powerless to order the release because the law did not cater for such a situation.

Dr Azzopardi filed a request before Mr Justice Lawrence Quintano yesterday morning demanding his client’s release pending the outcome of the woman’s court case.

Many legal obstacles are being put in the way

Mr Justice Quintano ruled that, having been the adjudicator who had decided the appeal against the man, he could not take cognizance of such a request.

Within the hour, Mr Justice Antonio Mizzi decided to hear the case behind closed doors on a request by lawyers Elaine Mercieca Rizzo and Giannella Busuttil representing the Attorney General.

After a sitting lasting more than an hour, Mr Justice Mizzi retired to his chambers to consider and issue a decree. By the time of going to press it was not known whether the decree had been issued.

Dr Azzopardi pointed out that the Constitutional Court, where another request was filed, was aware of the urgency and hoped it would grant an interim measure early next week. He said the Constitutional Court required adequate time to evaluate the evidence in the proceedings and weigh the evidence that was now contained in the case file. The court should then order the man’s release from arrest as an interim measure, Dr Azzopardi said.

“There is hope. I am convinced of his innocence,” Dr Azzopardi said.

Asked whether he is prepared to take this all the way to the European Court of Human Rights, Dr Azzopardi said that all legal measures available in Malta had first to be exhausted but if that failed he had no hesitation in resorting to the European Court. “In that case I have no doubt that they would then see that the State failed to provide a remedy,” he said.

“What is bothering me is that, despite undeniable evidence, there are many legal obstacles being put in the way for the interim measure needed to be implemented. I expect that it is acknowledged that a judicial mistake was made and that it needs to be fixed,” Dr Azzopardi said.

The matter was raised in the weekly TVM show Xarabank last night although the wife’s lawyer, Martin Fenech, who also sits on the PBS editorial board, asked that the case would not be discussed. Xarabank interviewed Dr Azzopardi.