Criminal action against a man found in possession of forged travel documents were annulled on appeal in a judgment that cast the spotlight on proceedings instituted by immigration authorities. 

The story of Hamid Afou, a Syrian national caught travelling to Malta with a false Greek identity card, started off on much the same footing as other cases concerning alleged breaches of immigration laws.

The man was arraigned in July alongside a fellow migrant over charges of possession and use of fake documents.

Both pleaded not guilty before the Magistrates’ Courts and were each condemned to six months in jail.

However, Afou filed an appeal and his lawyer, Arthur Azzopardi, did not only request a variation of punishment but challenged the entire proceedings from their very inception. 

The defence lawyer’s arguments opened up a new dimension on similar proceedings where charges are normally issued by the principal immigration officer appointed by the Prime Minister.

One of the defence’s arguments stemmed from the fact that such appointment dated back to 1970 when the Prime Minister at the time had nominated the Police Commissioner in office to serve as principal immigration officer. 

The nomination was still valid to date, a representative of the Home Affairs Ministry testified in court.

Each commissioner was to be individually nominated, argued the defence. 

Moreover, the principal immigration officer had no authority to prosecute such cases in terms of law, argued the lawyer.

The Court of Criminal Appeal, presided over by Mr Justice Giovanni Grixti, observed that the current police chief had expressly delegated, in writing, authority to all police and civilian immigration officers “to exercise and perform on his behalf all powers and duties vested in him in terms of the Immigration Act”.

However, an analysis of that law, as well as passport laws together with the Criminal Code, left no doubt that the principal immigration officer had no power to prosecute even if in the rank of inspector. 

Charges were normally handled by a police inspector acting on behalf of the principal immigration officer. 

His power was limited to arresting suspects but prosecution for such charges vested in the police, observed the court, pointing out that in this case the law did not expressly provide otherwise as it did under the Occupational Health and Safety Authority Act.

Since in this case, prosecution was led by the principal immigration officer who lacked the power to do so, Afou’s conviction was to be quashed, concluded Mr Justice Grixti, annulling the proceedings and ordering the appellant’s immediate release.

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