A man was let off the hook after being caught outside well beyond a court-imposed curfew whereby he risked losing not only his personal freedom but also a €11,000 bail bond.
Mohamed Abdulmajeb Abungab, a 23-year-old Gżira resident, is currently facing criminal proceedings over his alleged involvement in a burglary last year, as well as threats to a police officer, unlawful possession of a flick knife, driving without a licence and relapsing.
Following his arrest and arraignment last year, the man regained his personal freedom after being granted bail, against an €11,000 bail bond and on condition of abiding by curfew hours.
Yet on August 1, Abungab was out and about in St Julian’s, at around 2am, well past his curfew hours.
When checking localisation data relative to the accused’s mobile phone, investigators discovered that there had been other occasions when the man had allegedly committed the same breach, noting that his phone signalled him outside his home for hours, beyond the imposed curfew.
Upon his arraignment last week, the man had pleaded guilty, his lawyer arguing that the accused would occasionally share his mobile with third parties, while adding that his client had been out, celebrating the Muslim Eid festival.
That admission would bring about the forfeiture of his bail bond, since such a measure was mandatory in terms of law, the court had explained.
Yet, when delivering judgment, the court, presided over by magistrate Donatella Frendo Dimech, pointed out an error in the charge sheet which meant that the accused could not be convicted of the facts as charged.
The decree granting bail was said to be dated “December 19, 2020,” when in actual fact it was “December 19, 2019”.
Citing doctrine and case-law on this matter, the court observed that, “it would seriously fail in its duties if it were to convict a person of facts which were not backed by evidence, more so when the evidence put forward presented conflicting facts”.
While pronouncing an acquittal, the court seized upon the opportunity to point out a discrepancy in the law which could give rise to “disproportionate consequences” in case of minor breaches of bail conditions.
Whereas article 579(1) of the Criminal Code allows the court discretion to waive forfeiture of the bail bond when the infringement that the infringement is “not of serious consequence,” the following provision makes forfeiture mandatory.
Article 579(2) states that, “Any person who fails to observe any of the conditions imposed by the court in its decree granting bail shall be guilty of an offence and shall, on conviction, be liable to the punishment of a fine (multa) or to a term of imprisonment from four months to two years, or to both such fine and imprisonment and the sum stated in the bail bond shall be forfeited to the government of Malta.”
The court made reference to an ECHR 2010 judgment against Malta where the applicant had forfeited a €23,300 bail bond over a single breach of a curfew, leading the court to declare that “where the condition breached referred to a curfew and was not connected to the primary purpose of granting bail, the court has difficulty in understanding the authorities’ decision to apply the relevant article.”
The distinction between minor breaches of bail and other more serious breaches needed to be made especially where forfeiture of the bail bond was mandatory, said Magistrate Frendo Dimech ordering notification of the judgment to the Justice Minister and the Attorney General.
Lawyer Noel Bianco was defence counsel.