A man facing a five-year prison sentence for drug trafficking was discriminated against by a constitutional court that failed to treat him in the same way as another man whose case was “almost a mirror image” of his own. 

Mr Justice Toni Abela, presiding over the First Hall, Civil Court, also found that Christopher Bartolo’s rights had been breached when he was denied the right to have his criminal case decided by a Drugs Court. 

The court conclusion could offer light at the end of an eight-year long legal tunnel for Bartolo, who has spent the past eight years caught up in a legal saga after police found 167 grams of cannabis resin at his Gozo home. 

Bartolo, who is a kidney transplant patient, was interrogated by the police in spite of having just returned home after a routine dialysis session and had finally admitted to drug trafficking following “direct and persistent questioning.”

He made that admission without having a lawyer present – that requirement was only introduced into law in 2016 – and it marked the start of a long legal saga. 

The judgment in a nutshell

Bartolo’s lawyer Franco Debono had drawn a parallel between his client’s treatment and that afforded to another man, Brian Vella, in a similar case.

In Vella’s case, the Constitutional Court, presided by the same three judges that decided Bartolo’s case had declared the accused’s statements inadmissible in evidence and ordered criminal proceedings to start afresh. 

However, in Bartolo’s case, while statements he gave to the police were declared inadmissible, the same court had stopped short of placing Bartolo in the position he had been before pleading guilty. 

Statements which Bartolo had given to the police and subsequently confirmed under oath before the inquiring magistrate had remained in the court record. 

“By no stretch of the imagination” could those statements be allowed as evidence, the court ruled, saying that to do so would be “like saying an original document is removed but not its copy.”

Mr Justice Abela said that the fact that the judges were the same ones in both cases did not play a part in his reasoning. Nor did the facts in both cases have to be “perfectly identical,” he said. It sufficed that they were similar. 

Discrimination did not need to stem from a “voluntary or intentional act,” the court said, noting further that it was a pity that Maltese law did not provide for retrial in criminal proceedings. 

Finally, the court also held that Bartolo had suffered a breach of rights when denied the right to have his criminal case decided by a drugs court. 

The right to go to the drugs court was not automatic and it would be the court of criminal appeal that would determine that, the court said, but it was a right that could not be limited to the magistrates’ courts or the appeals court in its inferior jurisdiction. 

When all was considered, the court declared that Bartolo’s right to a fair hearing was breached when his sworn statements were not declared inadmissible and when denied the right to request that he be tried before the drugs court.

He also suffered discrimination when afforded a different remedy to that granted to Brian Vella, with the court ordering that Bartolo be placed in the same position he had been before pleading guilty. 

Echoes of a previous judgement

This judgment, still subject to appeal, echoes an earlier remedy granted to Bartolo by another constitutional court in 2017.

Madam Justice Jacqueline Padovani Grima had ordered the removal of his statements from the criminal records and further granted Bartolo the right to withdraw his admission. 

But that remedy was subsequently varied on appeal.

Bartolo is currently out on bail, after cabinet made a recommendation to the president to that effect in 2018, using a rarely used provision in the criminal code. 

Meanwhile, last week the Constitutional Court confirmed an earlier decision by Mr Justice Abela suspending final judgment on punishment pending the outcome of these constitutional proceedings. 

Lawyers Franco Debono, Marion Camilleri and Francesca Zarb assisted Bartolo. 

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