A man whose release from detention was ordered by a constitutional court last week continues to be denied his personal freedom pending an appeal filed by the state advocate. 

Elton Gregory Dsane came to Malta for the Lost and Found festival last year. He and another four passengers were stopped and searched for drugs at the airport. Although no drugs were found on their person or luggage, all five were escorted to Mater Dei Hospital for a body scan. 

Human excrement was eventually analysed and the presence of MDMA, cocaine and Ketamine was found. DNA tests matched the excrement to two of the suspects, namely Dsane and Usamah Hajjaj, who were detained and taken in for interrogation. 

They were arraigned on the following day, facing multiple charges including conspiracy to import drugs into Malta as well as unlawful possession of MDMA, cocaine and Ketamine. 

Both were assigned the same legal aid lawyer, different from the one who had assisted them the night before, advising them over the phone to stick to their right to silence throughout the police interrogation. 

But the lawyer assisting them at the arraignment explained that if they registered an early guilty plea, there would be a reduction in punishment. 

Without understanding the gravity of the charges filed against them, both men had registered an admission, each getting a four-year jail term and a €1,000 fine. 

During his stay in prison, Dsane met Hajjaj, who had meanwhile filed an appeal against the conviction. But by the time Dsane’s mother, who he could not contact immediately, travelled to Malta, the term for her son’s appeal had lapsed.

Meanwhile, Hajjaj’s appeal was successful, with the Court of Criminal Appeal, presided over by Madam Justice Consuelo Scerri Herrera, delivering judgment in April 2020, reducing the jail term to 18 months and the fine to €800.

In the course of those proceedings, DNA results were produced, making it clear that the accused had been wrongly charged with crimes which they did not commit since neither of them had possessed all three of the drugs and had not known each other before their arrest. 

Once Dsane came to know the outcome of that appeal, he decided to take his grievances before the constitutional courts, filing a case in May, claiming his rights had been breached. 

The applicant’s lawyer, Peter Fenech, argued that Dsane had not been afforded proper legal assistance and he ended up admitting to crimes he did not commit, without understanding the full implications of that admission.

The magistrate presiding over the case had also been misguided, the applicant argued. 

Delivering judgment last week, the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Toni Abela, upheld the man’s claims, observing that, “had all the information been revealed comprehensively to the legal aid counsel and to the magistrate, it would have possibly enabled the applicant to exonerate himself or be exonerated by the magistrate from some of the charges”.

“This court fails to understand the haste and hurry by which the Police arraigned within matters of hours,” Mr Justice Abela said, noting further that Dsane had indicated his wish to have a personal lawyer which his parents could afford. 

The court also observed that during Hajjaj’s appeal proceedings, “the Attorney General, by his own declaration, during the sitting of 20th February 2020, impliedly accepted that there was a clear miscarriage of justice.”

It declared that Dsane’s right to a fair hearing had been breached, ordering a reduction of his jail term to 18 months and the fine to €800, and further ordering his immediate release from custody, given that he had already served his term of punishment. 

His lawyer filed another urgent application for an interim measure to obtain his release, pending a possible appeal by the State Advocate against the judgment. 

During a hearing on Wednesday, lawyer Maurizio Cordina, from the State Advocate’s Office, informed the court that an appeal had been filed. He argued that the interim measure should have been filed before the Constitutional Court that will hear the appeal. 

But Fenech countered that when asking for the interim measure to obtain his client’s release, no appeal had yet been filed by the state advocate. 

The continued detention of Dsane was unlawful and every minute he was wrongfully detained was in breach of his fundamental rights, he argued.

However, in a decree delivered later in the afternoon, declared that in terms of procedural laws, “such [interim] measures are only conceivable when proceedings are still pending before the court which is to decide the matter and before deliverance of such judgment”.

Consequently, since an appeal had been filed, the court refrained “from taking further cognisance of this request”.

Meanwhile, the applicant’s lawyer has informed Times of Malta that another application for provisional enforcement of the judgment ordering Dsane’s release is being filed before the Constitutional Court.