“Lethal weapon” Jomic Calleja Maatouk was tried in front of a magistrate not a judge, allowing him to be released on bail despite having been found guilty of importing explosives, because the charges he faced carried a maximum sentence of under 12 years, according to several lawyers who spoke to Times of Malta.
Whether a case is heard by a magistrate or a judge depends on the maximum sentence that the crime may carry.
According to Maltese law, magistrates can only hand down a maximum 12-year prison sentence, while judges are free to hand down lengthier ones.
Cases in which a person is charged with a crime that carries a maximum sentence of over 12 years are automatically handled by Malta’s criminal courts, presided by a judge. These usually include crimes of a more serious nature, such as murder.
On the other hand, crimes that carry a sentence of under 12 years are heard by the court of magistrates, a process that is usually speedier and less administratively cumbersome.
In the case of crimes where the maximum sentence may span across both thresholds (such as in the case where a crime could carry a maximum sentence between 10 and 15 years, for instance) it is up to the AG to decide which court should hear the case.
The key charge that Calleja Maatouk faced, that of importing explosives, carries a prison term of between two and five years according to Maltese law.
Why was he out on bail?
Despite having been sentenced, a legal provision allowed Calleja Maatouk to have the execution of his sentence temporarily suspended, effectively putting it on hold until the appeal is heard and placing him back on bail, the position he was in before his sentence was issued.
Lawyers who spoke to Times of Malta pointed to a legal anomaly where people who are sentenced in a magistrate’s court can have the execution of their sentence temporarily suspended in this way, while those sentenced in criminal court (before a judge) cannot.
Article 416(3) of Malta’s criminal code says that when a case is heard in the court of magistrates an appeal will “stay the execution of the judgement” and result in the person’s temporary release while the appeal is being heard.
Lawyers say that this clause prevents situations in which people sentenced by a magistrate, many of whom are subject to relatively short sentences, spend a large portion of their sentence behind bars only to then have it overturned on appeal.
Upon receiving this stay of execution, they are returned to the identical legal position they were in before the sentence was handed down. If their appeal is turned down, the stay of execution comes to an end and the sentence kicks in.
This mechanism is not in place when a case is heard in a criminal court, creating an unusual situation where a person sentenced to a relatively short sentence in criminal court is denied a stay of execution, while a person who receives the maximum 12-year sentence by a magistrate is granted one.
Renewed calls for tagging
Several lawyers told Times of Malta that Calleja Maatouk’s situation is a textbook case that could have been prevented if a system of electronic tagging was in place.
Electronic monitoring has long been in the works, with the public told that this was in the pipeline by then Justice Minister Carmelo Mifsud Bonnici back in 2009.
The issue was again raised by then PN MP Franco Debono in 2012 who, in a parliamentary speech, had called for electronic tagging to be introduced. The lack of it, Debono had argued, was leading to an unjust situation where people were being held in custody unnecessarily when the state could easily keep tabs on them through electronic monitoring.
Debono’s call was echoed years later by Judge Consuelo Scerri Herrera, who in 2018 said that having such a system in place would ensure that the state is in a better position to monitor people accused of criminal offences who had been given bail.
Despite sporadic efforts to introduce some forms of electronic tagging throughout the years, such as a pilot project introduced by former prison director Alex Dalli for prisoners on pre-release or carrying out community work, such a system has not yet been introduced into Maltese law.
A bill to regulate the introduction of electronic monitoring was drafted and published for public consultation back in May 2021 and later presented in parliament for its first reading a little over a year later, in September 2022.
Following that, a tender for the design of an electronic monitoring system was issued late last year, to the tune of some €7.4 million, however, the bill is yet to be returned to parliament to be drafted into law.
A spokesperson for the Home Affairs Ministry said the bill is pending before parliament following “a lengthy and detailed process of public consultation during which the bill was amended to include the various proposals made by civil society and interested persons and entities”, while the tender is currently at evaluation stage.
“Minister Camilleri looks forward for the bill to be debated in Parliament once Parliament reconvenes after the summer recess.”
How are tabs kept?
In the absence of an electronic tagging system, courts are forced to impose fairly primitive methods of surveillance, such as forcing people to sign a bail book, imposing a personal guarantee and taking financial deposits.
Lawyers explained to Times of Malta that upon their arrest, a person’s passport or travel documents are sealed, preventing them from absconding or travelling abroad.
However, a top police source told Times of Malta that they had sounded the alarm within the force, warning that it was relatively easy for a person to get hold of new travel documents and use them to flee.