Court of appeal throws out request by El Hiblu accused

A court of appeal has thrown out a request by two men to drop terrorism charges they believe are technically wrong, and instead asked the Attorney General to amend the "defect" in the accusation that will eventually be presented to a trial by jury. 

The Court of Criminal Appeal this week partially upheld a grievance raised by Abdalla Bari and Amara Kromaha, who are indicted with terrorism charges over the El Hiblu 1, but ordered the AG to amend the Bill of Indictment instead of acceding to their request declaring the charges null.

Bari and Kromaha are facing nine counts, ranging from terrorism charges to illegally detaining the crew and using moral or psychological violence on the crew, among others.

They deny the charges.

Initially, Bari and Kromaha were arraigned alongside Abdul Kader, who has since absconded and is currently fighting extradition in the United Kingdom.

The three men were teenagers when they were detained and arrested abroad the oil tanker El Hiblu 1 in 2019 after the armed forces intercepted it while out at sea.

Police allege that the hijacking was led by Kromaha, Kader and Bari, who were aged 15, 16 and 19 at the time. The Attorney General subsequently charged all three with terrorism-related crimes. They were held in custody for nine months and granted bail in November 2019.

They deny all charges and say they were serving as translators for others in the group, as they could communicate with the captain in English.

Through their lawyers, Bari and Kromaha appealed a judgment by the Criminal Court handed down on July 29, 2025, that threw out their preliminary pleas in which they requested the court to declare null the first, second and third counts - all of which relate to terrorism charges.

They requested the Court of Criminal Appeal to revoke the judgment and uphold their pleas instead. The AG replied that the appeal should be rejected and the judgment by the Criminal Court should be upheld.

In their first grievance, they argued that it should be declared null because the articles of the law on which the charge is based do not constitute the offence with which they are charged. They argued that the articles of the law indicating the offence are not indicated by the Attorney General in the accusatory part of the Bill of Indictment, and the facts as narrated do not amount to the offence, since the AG does not indicate the material acts of terrorism were such as to cause damage to Malta.

The Court of Criminal Appeal observed that the Attorney General has discretion to decide the manner in which the Bill of Indictment is to be issued.

It observed that the law expressly states that in laying out the charge, the AG must quote the article of law creating the offence, and this is when asking the court to proceed against the accused person, sentence him and inflict the punishment envisaged at law commensurate to the declaration of guilt.

The court observed that the law does not stipulate that the article of the law indicating the offence has to be indicated in one part of the Indictment rather than another, but it states that the Bill of Indictment must end with the demand that the accused be proceeded against according to law, and that he be sentenced to the punishment prescribed by law and the article of the law creating the offence must be clearly quoted.

It observed that in this case, the article was quoted according to the law, and rejected the grievance.

The Court of Criminal Appeal agreed with the Criminal Court that the facts narrated by the Attorney General in the narrative part of the Bill of Indictment do not form part of the body of evidence which is brought at the trial.

The narrative part does not constitute any proof in the case, and jurors were to be guided not to rely on the narrative in establishing guilt or otherwise. Jurors must solely rely on the evidence heard during the trial. It added that what the law stipulates is that the facts narrated in the Bill of Indictment must, in substance, constitute the offence with which one is charged.

The court observed that in this case, the facts narrated are in substance tantamount to the offence of terrorism. However, it is only during the trial that it will be determined whether all the elements of the offence will be proven and will result in a conviction, with the Court of Criminal Appeal saying that if one or more of the elements of the offence are not proven, this would lead to an acquittal.

At this stage, the Court must establish whether facts narrated in the Bill of Indictment constitute the offence in substance.

The Court of Criminal Appeal also said that the plea of nullity of the Bill of Indictment cannot be granted due to any reason put forward by the accused, but rather when it is shown that, on the face of it, there results substantial defects which cannot be remedied by an amendment to the Bill of Indictment.

Such defects would cause an irremediable prejudice to the accused.

It held that where the plea of nullity is raised, the court must assess whether the formal requirements established by law have been complied with. In this case, it found that all the requisites had been satisfied and rejected the grievance as unfounded.

The second grievance raised by the appellants saw them arguing that the facts narrated by the AG did not match the accusation since no damage was indicated to have been caused through the terrorist acts allegedly committed.

The Court of Criminal Appeal underlined that it is not within its remit to decide on questions of fact, which will be decided upon during the trial by jury.

In their third grievance, they argued that the third count that of having committed terrorist activities when they intentionally seized the vessel by the use of force or threats, was null and void since the wrong article was quoted.

The court held that the AG quoted the wrong disposition of the law and, through its powers at law, ordered that the defect be amended.

It then upheld partially the appeal filed by Bari and Kromaha and ordered the AG to make the necessary amendment.

It also ordered that the records of the case be remitted before the Criminal Court so the case may proceed according to law.

Chief Justice Mark Chetcuti presided over the Court of Criminal Appeal, alongside Madam Justice Edwina Grima and Mr Justice Giovanni Grixti.

Lawyers Cedric Mifsud, Carla Camilleri and Neil Falzon assisted Bari and Kromaha.