The Constitution confers on the police the right and duty to detain any person reasonably suspected of having committed a criminal offence. But then the same Constitution gives the police 48 hours to choose between one of two courses of action: either to charge in court the person/s arrested, or to release them. No three ways about it: release or charge.

This lament is about how the authorities have made a chilling mockery of this fundamental right, not rarely under the distinguished patronage of the courts.

In Malta, the stark letter of the law seems to radiate far more inspiring energies than its spirit; the police were hardly bothered by this 48-hour timeframe. Did it galvanise them into acting rapidly to beat deadlines? You bet it didn’t. A ruse, and the blessing of the complacent courts, made life all that much easier. Simple, no?

On the very last moments of the 48 hours, two burly policemen would escort the detainees to the threshold of the police depot. The instant they crossed the street outside, the police would re-arrest them and take them back inside. This ‘release’ and re-arrest could happen repeatedly and indefinitely. The person arrested had been released, no? So what’s the moan?

For years the courts found nothing wrong with this cynical violation of human rights. The legal fiction of ‘releasing’ the detainee for less than five seconds prevailed, as it should in a democratic society, over the fundamental human right to be either charged with a criminal offence or released.

It had to be magistrate Joseph Filletti who, in Joseph Galea, for the first time bravely broke through this barrier of police and judicial omertà and established that ‘release’ from detention had to be what it says: a meaningful release in which the suspects were free to go where they want and meet who they chose. A re-arrest could only take place after an effective release. This sounds like basic ABC, but was then deemed subversive and disconcerting. Before Filletti, not no court had seen anything inappropriate in this mocking travesty of the Constitution.

Did the Filletti model solve all the problems? Many it did, but none of those connected with senior politicians. The AP and CS cases say a lot about interminable detention in police custody without charge or release. The victims could have authored a fetid memoir about the collapse of the rule of law in Malta, and how some courts fought it and others bruised their hands applauding it.

Rumours were circulating that a mysterious Englishman was being secretly de­tained at the police depot in Floriana, and that no one was allowed to approach him. After 74 DAYS, these rumours eventually reached the British High Commission which engaged lawyers to intervene. The man in solitary detention was a deserter from the British Army of the Rhine, homeless and living the life of a vagrant in Malta. The police arrested him while sleeping on a bench in a public space. They later said they suspected him of being a hitman bent on assassinating the Prime Minister. The lawyers requested from the court a writ of Habeas Corpus – either charge him with a criminal offence or release him.

The duty magistrate appointed the hearing for the afternoon. The police reluctantly conceded they had AP in their custody for 74 DAYS, without having charged him with any offence, in blatant violation of the Constitution and of his fundamental human rights.

During the hearing, the court’s messenger came to whisper something in the magistrate’s ear, and the latter suspended the sitting. A few minutes later he re-emerged, visibly shaken. The Prime Minister had phoned him, person to person, and not to wish him happy birthday. The victim of this political bullying was magistrate Joseph D. Camilleri, who in the circumstances, heroically stood his ground, “probably waving a judgeship good bye”. He ordered the police to charge AP with a criminal offence or to release him instantly. The police finally released him but did not allow him to leave the island.

Best to read the magistrate’s words on an airplane – you’ll have a puke-bag handy

They eventually charged AP… with the unforgivable crime of vagrancy. AP had been deprived of his liberty, of his constitutional human rights, kept incarcerated incommunicado for 74 interminable days – to pander meekly to the paranoia of a politician. A small price to pay for the great ego of a man who believed he was great. The police had no problems trampling all over the Constitution with manic vehemence, so long as they kept Castille happy. All the policemen involved were promoted. As a fitting epilogue, AP is reported to have committed suicide after escaping from his hell-hole.

Again, more rumours started circulating that a mild and taciturn person was being held in solitary confinement at the police depot in Floriana. Days and months passed by without his having been released or charged with any offence. A lawyer took it upon himself to bring this state of malaise to the notice of an Habeas Corpus magistrate. A tragic human story unfolded.

CS had been living with his common-law wife in England. She had a long history of mental illness, including sectioning, suffering delusions of grandeur. She claimed to be queen of Malta and would be marching to the island at the head of an invincible army of mercenaries. This had become a sad joke among the Maltese community in London. No one took it remotely seriously, but it was obviously reported to the police in Malta.

CS travelled to Malta, was immediately arrested on landing, and taken secretly to the police depot, where he was forgotten. Not charged, not released. After 67 DAYS – not two days or 20 days – in total limbo, the police were finally forced to charge him with a criminal offence. Yes, but which?

They accused him of failing to disclose a crime against the safety of the government. Not conspiracy in a plot to overthrow the government, but the separate crime of failing to snitch on his wife to reveal a fantasy wrapped in a hallucination. Surely a citizen may have a duty to expose a plot against the legal order, but also the delusional ramblings of a mental patient?

The police had hit on a dazzling ‘stratagem’ to keep CS locked up. They lied to him that incensed mobs were baying for his blood and would lynch him the moment he set foot outside the depot. They could only guarantee his safety by hiding him inside. Popular anger? No one, including his immediate family, was even aware he had returned to Malta.

These shamefaced lies by the police to deprive a person fraudulently of his fundamental human rights were not condemned by the court. Condemned? A beaming ma­gistrate actually applauded the craftiness of the police in cheating a vulnerable person of his freedom. Best to read the magistrate’s words on an airplane – you’ll have a puke-bag handy: “Just because the police used some sort of stratagem to convince the accused to remain voluntarily(?!) in their detention, does not lessen the voluntariness of his detention in the police depot.” This is the guardian of inalienable human rights burping; this is the majesty of the law whoring for the politician. I know the magistrate would be embarrassed to be accused of integrity, so I won’t.

Meanwhile the trial dragged on and on because of the impressive economy of evidence, but the court would not hear of bail. Had CS been guilty, the MAXIMUM penalty would have been 18 months’ jail. When he had been in preventive detention for well OVER 18 months, CS made a final plea for bail. The court refused again. What, bail someone who had not snitched on his mentally disturbed wife? What, upset Castille? He had already served in detention more than the maximum punishment established by law.

His only remaining remedy was to petition the President of the republic. She answered as befitted the gravitas of her office: “Are you joking? When I spent a month in prison, no one intervened to set me free.” Well, there were some differences between her’s and CS’s imprisonment, weren’t there? She was in jail condemned for a certified criminal offence. CS was in detention in excess of the maxi­mum punishment prescribed by law, BEFORE any court had even found him guilty. Not that the President of the republic should bother with these subtle distinctions. She honestly believed she had been appointed to the highest office of the land to enjoy to the full the delight of vendettas for her personal griefs.

Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.

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