The prosecution’s bid to file fresh charges in a case that had been thrown out over a technicality may be doomed to failure. The courts have already declared a similar move to constitute double jeopardy.
The police are in the process of filing fresh charges against three police officers and a bouncer after they were cleared last month of beating French student Jean-Oliver Mesrine in a Paceville bar because the time of the incident indicated on the charge sheet was incorrect.
The incident allegedly happened at 3.30 a.m. on October 25, 2009 while the charges brought against the accused mistakenly referred to an incident that occurred at 11 p.m.
Following a public outcry as well as stern words from President George Abela – that the people who made the mistake should bear responsibility for it – the Justice Ministry confirmed that the police would be filing fresh charges in the case.
Police sources had argued that this would not be a case of trying someone twice for the same crime, since the time difference would render this a completely new charge.
However, in 2009 the courts had dismissed a similar argument, used in an almost identical attempt by the police to change someone who had been acquitted over a similar technicality.
The constitutional court had ruled that the double jeopardy principle provided for under the Constitution and the European Convention of Human Rights was linked to the central facts of the case, rather than more peripheral elements such as the time and place of the commission of a crime.
Constitutional expert Ian Refalo supports the line taken by the courts. “The prosecution’s error is fatal and any other case which is instituted to cover up that error amounts to trying the person for the second time”.
When contacted, Professor Refalo argued that it was “very clear” that two cases with identical facts amounted to being tried twice for the same crime.
“If I made a mistake in the date or time of the charges I filed against you, I cannot simply change the mistake and file it again, charging you with the same crime.
“The double jeopardy principle applies to the facts of the case. For a separate charge to stand, the facts of the case have to be different. Once the prosecution makes a mistake, it’s fatal,” Prof. Refalo said.
The 2009 ruling was requested by the defence lawyers of a man, Nicolai Magrin, who had fresh charges filed against him over a traffic accident in Tower Road in Sliema three years earlier.
Just as in the case of the four men facing charges over the Paceville brawl, the Magistrates’ Court acquitted Mr Magrin because the time indicated on his charge sheet was not the time when the traffic accident actually took place.
No appeal was filed but a month later, the police filed fresh but identical charges against Mr Magrin, except for the time of the incident.
The defence lawyers claimed double jeopardy, insisting that according to law a person cannot be tried twice for the same crime.
A Constitutional Court, presided over by Mr Justice Joseph Micallef, dealt with what is known in legal jargon as the ne bis in idem principle: someone who has already faced criminal proceedings (both if found guilty or cleared of the charges) cannot 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.
Mr Justice Micallef ruled that Mr Magrin’s right had been breached because the facts of the case were similar in both criminal cases and that the crime, independently of the time at which it happened, was the same.
Mr Justice Micallef therefore sent the case back to the Magistrates’ Court for Mr Magrin “to be sentenced according to this judgement”. Mr Magrin was cleared.