A man, cleared in a trial 11 months ago over his alleged involvement in the 2005 murder of Sion Grech, is claiming his fundamental rights were breached after he spent 10 years in preventive custody simply because he lacked the means to pay for his bail.

Faical Mahouachi had long protested his innocence, saying the case against him was “weak” with evidence linking him to the brutal murder deemed “insufficient”, he claimed in a sworn application before the constitutional courts.

The story began in 2013 when he was singled out by a witness at an identification parade as the second man allegedly involved in Grech’s murder.

Upon his return to Malta, he was arrested after being spotted in Republic Street, Valletta.

Sion Grech

Eight years earlier, Sion Grech, who was born male but identified as a woman, was reported missing. A week later, her body was found dumped in a field near the HSBC branch in Marsa, in an area where she used to loiter for prostitution.

The badly decomposed corpse bore signs of multiple stab wounds to the neck and chest.

Three years later, an anonymous letter mailed to the homicide squad allegedly led investigators to a woman, Jacqueline Rapinett, who at the time was serving time in prison.

She told police about the events of that fateful night in April 2005 when she had allegedly witnessed Ismael Habesh, with whom Grech had been in a romantic relationship, arguing with the victim over drugs.

The witness claimed that Habesh then grabbed Grech by the hair and beat her, before being joined by another man.

The two men then allegedly carried Grech into the field where they stabbed the screaming victim with knives, Rapinett had explained, subsequently leading police to the exact spot inside the field where three years previously the victim’s white-heeled shoe had been found.

The woman’s testimony was, however, contradicted by forensic evidence put forward at the two men’s trial earlier this year when a medico-legal expert explained there were no signs of disturbance at the spot where the victim’s corpse had been discovered.

The fact there was “absolutely” no sign of disturbance or commotion inside the field led the expert to question whether the victim had been killed on the spot, thus casting doubt on the star witness’s version.

Both Habesh and Mahouachi were cleared of wilful homicide by a jury vote of 7-2 and 8-1 respectively.

Throughout the proceedings from the very moment of his arrest, Mahouachi was assisted by legal aid lawyers.

Before his arraignment, the suspect had released two statements on January 31 and February 19, 2013, consulting a lawyer before the first statement, while refusing legal advice before his second interrogation.

At the time, Maltese law did not allow legal assistance to a suspect throughout the pre-arraignment stages, but only a maximum of one-hour consultation before interrogation.

Counsel filed various unsuccessful requests for bail

The accused pleaded not guilty to wilful homicide, possessing a weapon while committing a crime against the person, unlawful possession of a knife, as well as recidivism and breaching a previous probation order.

His counsel filed various requests for bail while the case proceeded before the Magistrates’ Court, but all were turned down.

Two years later, in 2015, his attempts were finally successful when Mahouachi was granted bail against a deposit of €5,000.

But the accused remained in jail, under preventive custody, because he did not have enough money to pay the deposit that would secure his release.

His legal aid lawyer twice filed requests to have that deposit reduced, but it was in vain.

The lawyer also minuted that the compilation proceedings were being “uselessly dragged out by many abusive referrals by the attorney general.”

Mahouachi’s lawyer had even requested a constitutional reference to have this state of affairs reviewed by a superior court. But again, that request was neither upheld nor rejected.

Meanwhile, Mahouachi remained behind bars as the years dragged by, right up to January 2023 when the murder trial was appointed for hearing.

'Deprived of right to fair hearing within reasonable time'

Now assisted by new lawyers of his own choice, Mahouachi said he was kept 10 years in preventive custody simply because he lacked the means to pay for his release and this meant he was deprived of his right to a fair hearing within a reasonable time while being subjected to unlawful arrest.

Throughout the criminal proceedings, it was evident that he lacked the financial means to engage a personal lawyer, relying on state-funded legal aid, even because he lacked income while spending years behind bars. That state of affairs ended once he was acquitted.

The law provided for legal safeguards to prevent a person from being kept under arrest, even if only for a short while, only to be subsequently acquitted, argued the applicant’s lawyers.

Evidently, those safeguards were not applied in Mahouachi’s case, argued the applicant’s lawyers Franco Debono, Marion Camilleri and Francesca Zarb.

The man had spent 10 years under preventive arrest simply because he lacked sufficient funds to pay the bail deposit which the court had refused to reduce in line with relative legislation and jurisprudence.

The magistrate presiding over the compilation of evidence had remarked several times that those proceedings were taking too long. Such delay was not attributable to the accused.

The applicant is now turning to the First Hall, Civil Court to declare such breach and to provide adequate remedies as necessary.

The siblings of Sion Grech have also filed a judicial protest against the state advocate, attorney general and police commissioner claiming a breach of constitutional rights.

Interviewed by Times of Malta after the acquittal, Sion Grech’s sister Rita Borg said: “The courts failed us. All this time has passed, and my brother’s killer has got away with murder”.