The human rights of a man jailed for murdering his ex-partner in 2010 were violated when a deposit he was ordered to make to be given bail was beyond his means, the European Court of Human Rights found.

Kenneth Gafà, 45, of Marsa, a former jockey, was sentenced to 35 years in July 2015 after pleading guilty to killing Christine Sammut, 40, of Rabat, who he had shot in cold blood outside a Żebbiegħ bar on the evening of December 11, 2010,

Mr Gafà was arrested on the same day as the crime and charged with wilful murder two days later.

Ten bail requests between his arraignment and August 2012 were rejected. He filed a constitutional case in view of his prolonged detention, but the court rejected his claims and his appeal was thrown out.

When, by law, he could not be detained any longer, the court granted bail on a number of conditions, but he was unable to afford the deposit. His mother hypothecated a property she jointly owed so she could stand as personal surety in the amount set by the court. Mr Gafà was released from custody in early August 2013 after 32 months in detention.

Less than a year later, he was found guilty of breaching bail conditions and remanded in custody again. He again asked for bail, but all requests were turned down.

A bill of indictment was issued against him in January 2015, and six months later, he pleaded guilty and was sentenced to 35 years in jail.

In his application to the European court in July 2014, Mr Gafà complained he had been detained on remand for an unreasonable period of time due to the excessive deposit he was ordered to pay.

Requests to lower the deposit rejected due to seriousness of crime

He invoked the European Convention of Human Rights, which lays down that one is entitled to trial within a reasonable time or release pending trial.

The Strasbourg-based Court noted Mr Gafà’s requests to lower the deposit were rejected because of the seriousness of the crime and the fear of tampering with evidence, though bail had already been granted. It commented that the Maltese courts had not explained how the bail sum had been set by referring to Mr Gafà’s assets and means, nor did they assess his capacity to pay the sum.

“At no stage... did the courts consider it adequate to decrease the amount of dep-osit, allowing him a real possibility to benefit from bail. No relevant or sufficient reasons connected to [Mr Gafà’s] financial situation have been put forward for such a course of action by the domestic courts,” the European court judges said.

They ruled that Mr Gafà’s right to stand trial within a reasonable time or to be released pending trial had been violated.

He had claimed moral damages to the tune of €6,000, but by five votes to two, the European court judges felt that the finding of a violation amounted to sufficient just satisfaction. Mr Gafà was, however, granted €3,000 in material damages to cover his costs and expenses.

Chief Justice Emeritus Vincent De Gaetano, one of the seven judges hearing the case, disagreed with the decision not to award moral damages.

In a partly dissenting opinion, he noted that according to the Criminal Code, committal proceedings should be completed within a period of one month, which could be extended to a maximum of three. Yet in this case, proceedings in one jurisdiction lasted from December 13, 2010 – when Mr Gafà was arraigned – to July 20, 2015.

Dr De Gaetano acknowledged that Mr Gafà’s main complaint was that the Maltese courts had failed to evaluate what he could afford to pay when setting bail conditions rather than that he had not been tried within a reasonable time. However, in the former chief justice’s view, the time factor had to be taken into account.

He wondered why the European court found that the finding of a violation was sufficient. “Why? No reason whatsoever is given. Was it, perhaps, because the applicant was a bad guy, who eventually admitted to the murder charge and was sentenced to 35 years imprisonment?” he asked, listing examples of moral damages being granted to people who had been found guilty of very serious crimes, including terrorist activities, murder, preparing explosive devices and being in possession of huge amounts of drugs.

“He applied to this court precisely because the domestic constitutional jurisdictions had got it wrong,” Dr De Gaetano said. “By holding that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant, the court is indirectly giving credence to the government’s argument that the only reason the applicant continued proceedings before the court was ‘to obtain compensation’. But then, not only the court but even the government was inconsistent – in their submissions… the government did not argue that a finding of a violation would be sufficient; their argument was that the amount of non-pecuniary damage should not exceed €1,500. By virtue of a triple somersault, the court ignored all this,” he said.

Dr De Gaetano concluded by quoting two former judges of the European court, including Giovanni Bonello, who, in a case involving a Bulgarian national claiming violation of the right to liberty and security, had noted: “Finding a violation of a fundamental right is no comfort for the government. Stopping there is no comfort for the victim. A moral thirst for justice is hardly different from a physical thirst for water.

“Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras.”