Kidney transplant patient Christopher Bartolo has had his five-year jail term quashed by the Constitutional Court, in a landmark judgement that struck down a sworn statement he gave a magistrate because it was given without his lawyer present. 

Bartolo's case, which revolves around the discovery of 167g of cannabis resin, has now been returned to the pre-judgment stage.  

Criminal suspects have the right to a lawyer and statements they give without the presence of one cannot be admitted as evidence in the case against them. Tuesday’s judgement goes a step further than that, extending that principle to statements given to magistrates. 

In this case the court, presiding over an appeal filed by the State Advocate, observed that “it hardly made sense” to declare such police statements inadmissible but then allow a sworn declaration confirming those same statements to be given before a magistrate conducting an in genere inquiry.

“The circumstances which may have tainted those statements likewise tainted the sworn declaration,” said the court, presided over by Mr Justice Joseph R. Micallef as president together with Mr Justices Tonio Mallia and Anthony Ellul. 

The important judgment followed upon a judgment delivered by the First Hall, Civil Court in June last year, which declared that Bartolo had suffered discrimination when a court failed to treat him in the same way as another man whose case was “almost a mirror image” of his own. 

That part of the judgment was on Tuesday revoked by the Constitutional Court, declaring that Bartolo had suffered no discrimination.

Bartolo in hospital, receiving treatment for his kidney condition. Photo: Facebook

The decision marks an important step in an eight-year-long legal saga for Bartolo which began when police discovered 167 grams of cannabis resin at his Gozo home. 

The suspect, who is a kidney transplant patient, was interrogated by police in spite of having just returned home after a routine dialysis session.

Although he eventually successfully challenged those statements before the courts, the statement he registered before the inquiring magistrate the following day, still stood as evidence.

That day the magistrate had taken down his confirmation on oath, following the normal summary procedure after having read out to the suspect his previous statements under police interrogation. 

In light of the particular circumstances of the case and the personal condition of the accused, having an impartial magistrate taking that sworn declaration did not change the fact that the procedure was not in order. 

The situation did not provide an adequate guarantee that Bartolo’s declaration was a fresh one, released freely. 

And although he may have not yet suffered a breach of his right to a fair hearing, given that criminal proceedings against him were not yet wrapped up, allowing such a sworn statement could result in such breach. 

To eliminate any fear of that happening, the court ordered the statement not to be used as evidence against Bartolo.

In 2017 the Criminal Court had condemned Bartolo to a five-year jail term. 

A cursory reading of that judgment showed that most of the court’s reasoning when meting out punishment, relied on Bartolo’s pre-trial statements, including his sworn statement before the magistrate. 

Christopher Bartolo. Photo: Facebook

Since that statement was now declared inadmissible, it was only “fair” that Bartolo be judged upon “other evidence,” said the court, thus quashing the criminal court’s judgment in so far as it referred to the accused’s statements and ordered that Bartolo be placed at the pre-judgment stage. 

Lawyers Franco Debono, Marion Camilleri and Francesca Zarb assisted Bartolo.