A man with a failing kidney who is behind bars despite his right to a fair trial having been "irretrievably prejudiced" is now pinning his hopes of being bailed on cabinet.

Christopher Bartolo must receive dialysis treatment every three days, after his transplanted kidney failed just a few months into a five-year prison sentence for cannabis offences. 

Mr Bartolo.

That conviction was secured on the basis of a confession subsequently deemed to be invalid by a constitutional court.

Last month, Mr Bartolo asked President Marie-Louise Coleiro Preca to step in and protect him by granting him bail on humanitarian grounds, with his lawyers citing a rarely-used clause in Malta's criminal clause allowing the president to grant prisoners bail in exceptional circumstances.    

But a spokesman at the Office of the President told Times of Malta on Tuesday that the president could not take such a decision unilaterally, and could only bail Mr Bartolo if cabinet recommended it. 

They cited Article 85 of Malta's constitution, which states that the president shall "act in accordance with the advice of the cabinet" when exercising its functions, save for some key exceptions. 

Hearing delayed

Despite his failing health, Mr Bartolo's hopes of a fast-tracked judicial process have also fallen by the wayside - a hearing scheduled for Wednesday morning has now been delayed by four weeks to February 5. 

READ: Kidney patient delves deep into criminal code to ask for President's help

That means that only a cabinet recommendation to the president will allow him to return home before then.

In the meantime, Mr Bartolo will continue to be ferried between Corradino Correctional Facility and the Renal Unit at Mater Dei Hospital every three days, to receive dialysis treatment for his terminal condition.

Just last month, Prime Minster Joseph Muscat had told a crowd that he had found it hard to sleep at night after reading about a reformed drug trafficker who was staring down the barrel of a long prison sentence. 

In a separate case, disbarred lawyer Patrick Spiteri was also allowed out of prison under house arrest after his lawyers highlighted concerns about his fragile physical health worsening while behind bars.

“Someone in Chris’ state of precarious health and whose proceedings are still pending should not be in prison,” his partner told Times of Malta. “There are two pending appeals which could annul his sentence.” 

Why is he in jail?

Mr Bartolo was sentenced to five years in prison in April 2017 after pleading guilty to having trafficked 1.5kg of cannabis, in an admission with echoes of that of Daniel Holmes back in 2011.

OPINION: The curious case of Christopher Bartolo

The 36-year-old Gozitan – who says that he used cannabis to self-medicate for pain caused by his kidney condition – had confessed to police during hours-long interrogations, one of which came after a six-hour dialysis session at Mater Dei.

Investigators denied him access to a lawyer on at least one occasion, and there was no evidence that he had been offered any food or drink while under interrogation.

Was his confession valid?

With prosecutors holding that confession as an ace up their sleeves, Mr Bartolo pleaded guilty and was jailed for five years.

Six months into that sentence, a constitutional court ruled that Mr Bartolo’s rights had been violated when he was denied access to a lawyer.

When entering his guilty plea, the court found, Mr Bartolo had faced a "Hobson's choice": he could either admit to the cannabis charges and hope for judicial leniency, or fight them and risk a far more severe sentence.

It ordered that his confession be struck from the record and said Mr Bartolo should be given the opportunity to reverse his admission of guilt.

But despite that ruling, he remains behind bars while the appeal he filed against his criminal sentence plays out. On their part, prosecutors have also filed their own appeal against the constitutional court ruling. That too remains pending.

Awaiting bail

Mr Bartolo’s lawyers have made it clear they are not seeking a pardon, but rather a simple bail decree which would allow him to live at home and receive the medical care he badly needs while his case goes through the law courts.

In the meantime, his kidney condition continues to take its toll on his health. A transplanted kidney has failed him since he has entered prison, where it is difficult to cater for his specific dietary and medical needs.

“We are just asking for bail on humanitarian grounds,” his partner said. “This is a special and humanitarian case.”