(Adds Franco Debono's reaction)

Judge Giovanni Bonello has stood his ground in a comparison he made between a judgement of a local court and that of the European Court, after his view was challenged by lawyer Franco Debono ( See: http://www.timesofmalta.com/articles/view/20120508/local/debono-said.418950 )

Writing in The Times today, Dr Bonello, a former European Court judge, said he disagreed with the recent local judgement which found “inequality of arms” in as much as a Maltese law allows the prosecution to request a review when bail is granted, but does not give an equivalent right to the accused when bail is refused. This, according to the local court, constituted a violation on the human rights of the accused person.

The Maltese case (Axisa – which found the violation) and the Strasbourg case (Stephens – which found no violation) have virtually everything in common, Judge Bonello insisted.

"Firstly, they both referred to situations of accused persons who are in detention when charged.

Secondly, they both referred to detained persons requesting the court to grant them release from detention.

Thirdly, they both referred to Maltese law that allows the prosecution to “appeal” if the accused is set free, but does not allow the accused to “appeal” when his request for liberty is denied.

Fourthly, they both referred to situations in which various other remedies exist in favour of the accused under ordinary law.

Fifthly, they both referred to cases in which the consequences of release could affect both the accused and the whole community, while the consequences of non-release would only affect the accused.

It is true that the Stephens case did not deal with the accused being freed on bail; it dealt with the accused being freed because of the illegality of the detention. It is also true that this is totally irrelevant to my, or the courts’ argument. And this is that setting the accused person free has totally different consequences on the individual and on the community from not setting the accused free. There can therefore be no inequality of arms when the law applies one norm to one and a different norm to the other – and this whether the accused is set free on bail or is set free because his detention is illegal.

In Axisa this was at issue: whether there was inequality of arms when the law allowed the prosecution the right to “appeal” if the accused is freed on bail, but did not allow the accused the right to “appeal” if his release is denied.

In Stephens this was at issue: whether there was inequality of arms when the law allowed the prosecution the right to appeal if the accused is released on grounds of illegality of detention, but did not allow the accused the right to appeal if his release is denied.

Not much of a difference, is there?

In the selfsame circumstances, the same logic should prevail.

On exactly equivalent facts and law, the Strasbourg court found no violation, and the Malta court found a violation."

And so does Franco Debono...

Commenting on Judge Bonello’s reaction, Dr Debono said that Judge Bonello's contribution today proved that a statement he made earlier was wrong, because then he had forgotten that the Stephens Judgment, over which he had presided, did not concern bail.

The error, Dr Debono said, was evident to both layman and lawyer and quite unexpected and surprising coming from an ex-judge.

Dr Bonello had said:

"The European Court of Human Rights had already ruled (Stephens v. Malta, No. 1), that the Maltese system, by virtue of which an accused denied bail cannot appeal (while the prosecution can when the court grants bail), does not violate the accused person’s fundamental human rights. The ECHR considered that the right of accused persons under Maltese law to request bail as frequently as they like, without any limitation whatsoever, ensures as strong a protection against unnecessarily prolonged detention as a right to appeal would."

Dr Debono said that while bail is dealt with in article 574 et seq of the Criminal Code as was the case with Axisa, applications by persons alleging illegal arrest are dealt with in article 409A (Stephens).

Since Dr Bonello's statement was wrong he had to go to great lengths to come up with a winding argument to show that, after all, after all, the cases might be similar, Dr Debono said.

He said that to substantiate his original statements Dr Bonello should show where the Stephens Judgment ruled about bail.

He pointed out that, in his first contribution, Dr Bonello did not declare he was one of the presiding judges in the Stephens case. Did he think that no future court had the right to overrule his judgments, he asked.

What Judge Bonello’s current contribution did was prove his original one wrong and unfounded. He now had to beat around the bush to try to show that the cases might be similar, even if not identical, as he had originally stated.

Dr Debono pointed out that bail and illegal arrest were not even similar technically.

“They might seem similar to the laymen but not from the legal viewpoint.”

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