It would be a “retrograde step” if the courts were to be granted discretion to refuse bail in cases of terrorism – even when the time limits set by law would have expired, Chief Justice Emeritus Vincent De Gaetano warns.

Madam Justice Consuelo Scerri Herrera suggested last month Parliament should consider amending the law so the court would be in a position to strike a balance between “the rights of the accused and those of society”.

She made the suggestion in a decree in which she granted bail to one of the two men involved in the alleged hijacking of an Afriqiyah Airlines plane to Malta.

In her decree, the judge noted that since the crime was liable to a term of imprisonment exceeding 15 years, bail had to be granted “upon the lapse of 30 months” from the date of the presentation of the charges, that is, when the accused had been arraigned on Christmas Day 2016.

READ: Hijacker who forced plane to come to Malta granted bail

Madam Justice Scerri Herrera also recommended the introduction of electronic tagging of people on bail.

Dr De Gaetano, who sits on the European Court of Human Rights, is very categorical when asked about the judge’s suggestions: “I think it would be a retrograde step, harking back to a Guantanamo mentality. I have only read the decree and, of course, I am not party or privy as to why, 26 months after the arraignment, the bill of indictment has not yet been filed in the Criminal Court against the person in question (nor do I understand the reference to the 30-month term in the decree).

“If a case is difficult or complex, special resources must be assigned to ensure that the compilation of evidence is conducted efficiently and effectively.

“There is, however, a positive point in that decree: the reference to electronic monitoring or tagging within the criminal justice system. This could, indeed, help reduce the disproportionate number of people in prison awaiting trial. The Committee of Ministers of the Council of Europe has even adopted, in 2014, a detailed recommendation on this matter,” he replies.

The Criminal Code provides for two sets of time limits after which the court must grant the accused bail.

Chief Justice Emeritus Vincent De Gaetano

Article 575, which was substantially amended in 1989 following a Constitutional Court judgment in the Lawrence Pullicino case, had struck down the blanket prohibition on bail in the case of very serious offences. It is intended to cater for the peculiarities of the Maltese legal system where a trial by jury usually follows a lengthy judicial inquiry, referred to in Maltese as kumpilazzjoni and which the English-speaking media usually term as ‘compilation of evidence’. (In 1993, Mr Pullicino was sentenced to 15 years in prison after being found guilty of complicity in causing grievous bodily harm followed by death to a person while under police interrogation at the headquarters in 1980. At the time, he was commissioner of police.)

The first set of terms – 12 months, 16 months or 20 months, depending on the gravity of the offence a person is charged with – starts running on arraignment.

If by the time this term expires the Attorney General has either not filed the bill of indictment in the Criminal Court or has not sent the case to be tried by the Court of Magistrates (as a court of criminal judicature as opposed to a court of criminal in-quiry), then the court must grant bail.

The other set of terms – four, eight, 12, 24 or 30 months, again depending on the punishment the crime attracts – applies either when no compilation of evidence has taken place and, therefore, the case is technically a summary one, or there has been a compilation of evidence and although the Attorney General sent the case to the Magistrates’ Court or  filed the bill of indictment in the Criminal Court,  there is as yet no final judgment. Here, too, bail must be granted according to the Criminal Code.

Trial must be conducted within a reasonable time

Does not this amount to merely extending the time one can be held in preventive custody without bail being granted?

“You cannot look at this simply numerically,” Dr De Gaetano hastens to reply.

He points out that the underlying assumption is that a trial, whether a person is on bail or not, must be conducted within a reasonable time. Unless the prosecution can show there are “relevant and sufficient reasons” for not granting bail, then bail must be granted.

The law itself mentions some of the circumstances to be taken into consideration when deciding against bail: the seriousness of the offence, the character of the accused, the possibility of absconding or of surreptitiously leaving Malta, the possibility of interfering or tampering with witnesses or with the course of justice.

Moreover, if bail is denied and a person is kept in custody awaiting trial, Article 5 of the European Convention on Human Rights has been held to require that the authorities display “special diligence” in the conduct of the proceedings, the former chief justice notes.

The reasonable time and special diligence requirements are not intended solely for the benefit of the accused but are also in the interest of society in general and of the victims of crime. The Strasbourg Court had declared in a case against France in October 1989 that the reasonable time guarantee in Article 6 of the Convention “underlines the importance of rendering justice without delays, which might jeopardise its effectiveness and credibility”.

Some could argue that a complex or difficult case may necessitate the terms linked to bail to be suspended.

However, Dr De Gaetano points out that the terms can only be suspended “in the very limited instances” mentioned in the Criminal Code, such as when a matter is referred to a court having constitutional jurisdiction, when letters rogatory are sent abroad or when the accused himself asks for an adjournment.

“The complexity or difficulty of a case does not dispense the authorities from the ‘special diligence’ requirement when a person is detained without bail,” he remarks.

Difficult and complex cases, Dr De Gaetano continues, require special resources, structures and proceedings to enable the State to process them within a reasonable time.

“In other words, they cannot be left to be dealt with on the same conveyor belt as ordinary cases.”

He notes that the compilation stage and subsequent proceedings before either the Court of Magistrates as a court of criminal judicature or before the Criminal Court (trial by jury) are, for the purpose of the Strasbourg case law, regarded as one level of jurisdiction, the second level being proceedings before the Court of Criminal Appeal. Malta has no third level, such as supreme court or cassation appeals, as in other jurisdictions.

“As a rule of thumb, and in line with the Strasbourg case law, criminal proceedings lasting between three and four years at one level of jurisdiction and for more than four years at two levels of jurisdiction are potentially capable of raising reasonable time issues under Article 6 of the European convention,” he cautions.