I almost wrote about William Agius a couple of weeks ago, then decided not to. All I could say was that I had met him in January at the instance of a friend, and discovered he already had a lawyer – and a very good one at that – and that help from me was superfluous.
And yes, writing on his behalf, which can be ill-advised in such cases, would have been equally pointless. Yet I found William extremely affable, well-mannered and unassuming. I liked him at once and from that moment took a genuine interest in his case.
There’s something that needs to be said and which the public tends to overlook – that judges are neither legislators nor magicians. When it comes to sentencing, there’s a bar below which they just cannot go. They can’t change laws or revisit punishments, even if they sincerely believe a custodial sentence to have been inappropriate.
Of course, William’s turning his life around was good news and something (one hoped) would be factored into the final judgment. And it was. Yes, a three-year custodial sentence was unusual. But it was fitting; and public indignation is now better directed elsewhere.
There’s actually far more to say about the case of Christopher Bartolo, and not writing about him would be a ‘sin’ of omission indeed. His is a bona fide humanitarian issue that shines a light on all that is anomalous, confusing and often plain unjust when the Criminal Court presides rather than the Court of Magistrates.
On April 27, 2017, Bartolo received a five-year sentence from the Criminal Court after ‘admitting’ to cannabis possession and related trafficking charges. He has since filed an appeal against that sentence, asking a higher court for review. Had the same decision (for the same charges) been delivered by the Court of Magistrates, Bartolo would have walked straight out of court after signing the ‘stay-of-execution’ form requesting appeal.
It’s like this: an appeal before the Court of Magistrates suspends both the judgment and the conviction, while the Criminal Court upholds only the conviction and the ‘guilty party’ remains incarcerated pending appeal (which could take as long as the original conviction, possibly even longer). Which of course defeats the purpose altogether. If an appeal is meant to suspend all the effects of a judgment, and if justice delayed is justice denied, how exactly do you reconcile the ‘injustice’ of someone who has spent five years serving a prison sentence for a crime he was never found guilty of committing, and eventually acquitted of?
If, finally, Bartolo is found guilty, then he can serve his sentence. But until such time, allow him the dignity and justice he deserves
Bartolo, who was charged in 2013, only stood trial in 2017. He was on bail during the intervening years and always scrupulously observed the conditions. If the purpose of an appeal is to restore the status-quo-ante, then surely it should take the accused back to the same position he enjoyed before the judgment – i.e. out on bail.
This case is even more curious because Bartolo had actually filed a constitutional case as early as October 2016, claiming that his human rights had been breached. Moreover, as a patient with a terminal kidney disease who had admitted to using drugs to alleviate chronic pain, he would in all probability qualify as a ‘vulnerable person’ according to European Court of Human Rights case law.
On November 23, 2017, the First Hall (Constitutional Jurisdiction) in Malta found that Bartolo had been denied effective legal assistance during two quite separate police interrogations. The court’s opinion here was based on the fact that the arrest and aforementioned interrogations (one of which had lasted seven hours!) had taken place immediately after the accused had undergone six hours of dialysis, and there was nothing on record saying whether he had been offered food or drink. This could have resulted in a coerced confession leading to an admission of guilt.
What has now happened is that the cart has been put before horse. Instead of waiting for the outcome of the constitutional case before going to trial, we now have two conflicting decisions regarding one and the same case. In a nutshell, the Constitutional Court has directed that the accused’s statements should be expunged and that he is given a chance to retract his admission: while the Criminal Court has found him guilty on the basis of those very same statements and has sentenced him to five years’ imprisonment.
To add insult to injury, both decisions have been appealed (the accused has appealed the Criminal Court decision, the Attorney General has questioned the First Hall’s). Which is fair enough.
If, on appeal, the Constitutional Court upholds the First Hall’s decision, the matter will end there and the accused will be afforded a ‘retrial’ before the Criminal Court. But if not, the accused will undoubtedly take the case to Europe and try to win it there. If indeed that happens, then Bartolo is looking at a minimum waiting period of four to seven years, by which time he will be released from prison anyway (although technically still ‘not guilty’).
In the final analysis (or should I say dialysis?), all this can be resolved by simply granting the accused bail. Because as things stand now, the Criminal Court judgment has been (1) appealed against and (2) potentially quashed by the First Hall. The accused therefore is still ‘innocent’, technically.
I’m not making any routine criminal appeal here, and I’m certainly not rallying for ‘compassionate release’. Rather, my appeal is to common-sense based first and foremost on sound law. If, finally, Bartolo is found guilty, then he can serve his sentence. But until such time, allow him the dignity and justice he deserves. And if he is finally acquitted, that will be one less legitimate grievance on the State’s conscience.
A Merry Christmas to all my readers.
michelaspiteri@gmail.com