Updated Saturday 11.45pm

A court on Friday overturned an effective prison sentence for two Turkish mothers who were separated from their young sons and jailed for using forged passports. 

The women, Rabia Yavuz, 27, and Muzekka Deneri, 29, have been fighting to be reunited with their sons - aged two and four - ever since they were last month sentenced to six months in prison. 

They were effectively freed on Friday afternoon. 

They have claimed they were being persecuted because they belonged to the Gulen movement, which was blamed for the 2016 failed coup on the Turkish government. The two women said they had fled their country together with their infant children, to avoid harsh consequences to their political beliefs.

Their appeal to overturn the sentence was upheld by Judge Aaron Bugeja on Friday afternoon. He upheld their six-month prison sentence but suspended it for two years. 

The case was heard on Friday morning and then suspended for a decision in the afternoon.  

Bugeja’s lengthy decision took nearly three hours to be read out in court.  

The case has been cast into the national spotlight after lobbyists and legal experts argued that the sentence breached Malta’s human rights obligations.

During his lengthy decision reading, Bugeja said the women had brought about “a perfect storm in the height of summer”.

“Rather than a midsummer night’s dream, they had a midsummer’s nightmare,” the judge said.  

In their appeal, the women’s defence lawyers Jason Grima and Gianluca Cappitta, argued that the punishment was excessive in the circumstances and their clients had a genuine case to have the penalty overturned. 

Referring to case law, the judge said penalties handed out by the courts are based on three factors; retribution, prevention, and rehabilitation.    

In appeal proceedings, Bugeja said, the court is to decide whether the sentence handed out is wrong in principle, excessive or manifestly excessive.  

When deciding whether the sentence is wrong or excessive, the court must reflect on the three fundamental factors of sentencing, he said. 

Just because a penalty is on the severe end of the scale, it does not mean it is excessive.  

In this case, the offence of carrying a forged official documents carries a penalty of between six months and two years. The act of forging is punishable by no more than six months, and the violation of the Immigration Act carries a fine no more €11,000, or prison of no more than two years, or the fine and prison sentence together.  

Bugeja argued that the prison sentence was the least possible and was well within the parameters of the law.  

Sentence 'not incorrect in principle'

The sentence was, therefore not incorrect in principle.  

In the past few years, Bugeja said, the number of people accused of using forged documents has increased heavily.  

It is evident that Malta is being used as a transit location for non-EU nationals to enter the EU, he said.  

“The court won’t delve into why people go into this illegal modus operandi.  Experience shows that the majority of these cases involve not just the traveller, but a circle of people involved in worldwide organised crime. These people provide a service, often complete, for irregular travel into the EU,” he said. 

That said, Bugeja said the authorities should not put everyone in the same basket, and the court needs to treat cases individually and on their own merit.  

“Whoever wants to open their eyes and look at this without seeing it through ideological lenses, then they will see this to be the case, and so I repeat that each case must be treated individually,” he said. 

Society, Bugeja said, was caught up in an ideological tug of war that did not allow people to look at this phenomenon of travel and migration in an objective and constructive manner.  

“We need to study, why honest people need to travel using fake documents,” he said.   

On the other hand, just as some had truly come into the EU with good intentions, others had crossed the union's external borders with bad intentions and had been behind terrible incidents. 

This, he said, is why prison sentences in these matters are not wrong in principle. 

Bugeja lamented that the court did not have the benefit of hearing prosecuting officers.  

The lack of evidence in the acts of the case and the lack of information in hand, meant the court had to decide based on the evidence presented and that alone.  

Furthermore, no court can take, at face value, a person’s claim in the face of criminal charges. Rather, the court must study the evidence. 

“Every case has its own circumstances and unique realities. The judicator must take these into consideration,” he said. 

The court, Bugeja said, does not have jurisdiction to decide whether the two women are eligible for asylum or refugee status.  

The court would not pronounce itself on this argument, especially in the light of their official application for asylum. 

As for the argument that the two are mothers of infants that are unable to speak Maltese or English, Bugeja said he had thought long and hard about this matter, reflecting on standard practice in Malta and abroad.  

Bugeja said he cannot agree with the “generalisations” in the prosecution’s arguments against the appeal. 

He then went on to read a handful of past cases in which similar offences had been given suspended sentences. 

The magistrates that had handed out suspended sentences felt there were valid reasons to deviate from the overwhelming majority of sentences handed down in such cases, he said. 

The judge made it clear that there was no mistake by the magistrate’s court which had jailed the two women. 

“It was the appellants who, through their illegal action, put themselves and the minors in their care, in this position,” he said. 

“With due respect, they knew they were doing something illegal.”

Despite this, the court cannot shut its easy to international developments in this field. 

Quoting a UK manual for the judiciary, Bugeja said “true equal treatment does not always mean treating everyone in the same way”.

Women will not be put in detention

The women’s lawyers told Times of Malta that they have found alternative accommodation for the women and so they will not be put into detention once they collect their belongings from prison.

They also explained that the women will be reunited with their children after child protective services conduct a routine interview to ensure they will be in good hands.

Common sense prevailed: Lisa Marie Foundation

The Lisa Maria Foundation welcomed the court's decision.

In a statement, it said that while laws must be adhered to and appropriate measures are taken, balance must be sought especially when decisions have direct repercussions on children and young people. 

"When justice is devoid of a human face, the effects, especially on children and young people, could be traumatic and long-lasting.

"The foundation appeals to the judiciary and the authorities to take into consideration the welfare and best interest of children."