A murder suspect challenging the mandatory forfeiture of a €31,000 bail bond appears to have been justified in doing so, since the law allowing such indiscriminate punishment is set to change.

The challenge was the subject of a constitutional reference requested by Franko Ahmed Rasem, a 35-year-old Libyan who last November was convicted over a violent episode at his girlfriend’s home, landing an effective jail term as well as forfeiture of the monies guaranteeing bail conditions.

The man had appealed that conviction and, pending final judgment, had then filed an application to challenge the constitutional validity of the relative provisions of the Criminal Code concerning breach of bail.

The man’s lawyers, Franco Debono and Amadeus Cachia, argued that the 2015 amendments to the Code had introduced a “blanket provision” which effectively bound the courts’ hands when deciding cases of breach of bail. 

As the law stands, once the breach is satisfactorily proved, the forfeiture of the bail bond automatically follows, with no discretion reserved for the court in considering the nature and gravity of the breach.

Such a situation could inevitably give rise to “elements of shocking disproportionality” between the breach and the punishment meted out, argued the lawyers, renewing calls they made months earlier in a similar case concerning Jason Caruana.

The Floriana resident, found alongside Daniel Muka when police moved in to arrest the latter over his alleged involvement in the Sliema double murder of Christian Pandolfino and Ivor Maciejowski, was subsequently charged with breaching bail.

Such lack of judicial discretion meant that no distinction was allowed between principal and ancillary conditions of bail, argued the lawyers, citing European case-law in support of their argument that such legal provisions effectively breached the accused’s fundamental rights. 

Moreover, the procedure in cases of breach of bail allowed the prosecuting officer to choose whether to arraign the suspect under arrest or else flag the alleged breach before the same court which had granted bail.

That too could possibly give rise to “discrimination and abuse,” argued the lawyers.

Just days after filing the request for a constitutional reference on behalf of Rasem, a parliamentary bill to amend the Criminal Code was published, suggesting a change in the current legal scenario. 

The objective of the proposed amendment is to allow “a wider margin of judicial discretion with regard to the forfeiture of bail bonds where the court finds that the infringement of the bail conditions was not of such gravity to merit the forfeiture of the full amount”.

Reference to this proposed amendment was made in court on Tuesday by a lawyer from the AG’s Office when Rasem’s case was being heard before the Criminal Court, presided over by Madam Justice Consuelo Scerri Herrera, prompting defence lawyers to remark that the proposed bill reaffirmed the validity of their claim.

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