Lawyers representing a man accused of forgery and breaking immigration laws have filed a constitutional application claiming that their client is being denied the right to a fair hearing and equality of arms because he cannot appeal a Magistrates' Court's decision on bail, even though the attorney general can.
The accused, Tran Manh Hung, a Vietnamese national, ended up under preventive custody after he was charged with involvement in a conspiracy whereby he made use of forged lease agreements to enable a number of co-nationals to secure a visa permit to settle in Malta.
Following his arraignment last month, he was remanded in custody.
Earlier this month, the person who actually prepared those false documents testified in Tran’s case after he had pleaded guilty in separate proceedings and was condemned to a one-year term of imprisonment.
That witness explained that Tran had got in touch with him asking for assistance in obtaining property lease agreements for a number of persons he was bringing over from Vietnam.
He could not explain how Tran had obtained his contact number.
He had prepared 10 rental contracts, charging Tran €170 for each of the documents and confirmed under cross-examination that he had personally written those documents.
When making submissions on bail, Tran defence lawyer, lawyer Jose’ Herrera, argued that the accused had been living in Malta for years and also had a regular job here.
The mastermind behind the racket was the person who had testified and who was now serving punishment.
Moreover, the humanitarian aspect of the case needed to be taken into account too. Bureaucracy was hampering the processing of such applications and unless applicants obtained a visa permit they would likely end up on the streets, the lawyer said.
That bail request was turned down.
Meanwhile the case, which falls within the competence of the Magistrates’ Courts, continues.
Faced with the repeated refusal of bail, Tran’s lawyers are challenging the current legal situation before the First Hall, Civil Court in its constitutional jurisdiction, arguing that there is no equality of arms.
In cases falling beyond the competence of the Magistrates’ Courts, the accused can file an application for bail before the Criminal Court during the time window while the records of the case are referred back to the Attorney General’s Office.
Therefore, if his bail application before the Magistrate hearing his case fails, the accused is afforded the chance of filing another request before the superior court.
But in those cases, like Tran’s, where the charges fall within the competence of the Magistrates’ Courts, such review by the Criminal Court is not possible.
The only forum where the accused may request bail is the Magistrates’ Court and if that court turns down his request, there is no possible review.
However, the situation is different for the Attorney General who always has a right to appeal a bail decision.
The lawyers argued that this legal scenario violated the accused’s right to a fair hearing which applied throughout the proceedings and also ran counter to the principle of equality of arms.
In their application the lawyers requested the court to declare that such lack of possible review of a bail decision breached the accused’s fundamental rights.
They also called upon the court to provide a remedy accordingly, possibly by reviewing the magistrate’s decision on bail or by authorising the applicant to file a request before the Criminal Court.
Lawyers Jose’ Herrera, David Camilleri and Martina Herrera signed the application.