A man is accused of attempted murder and is granted bail. While out of custody, he ends up being accused of killing another man. 

How could he have been out on bail in the first place? 

A recent case has raised such questions and prompted discussions about bail eligibility. 

On August 2020, Emil Marinov was slashed more than 20 times with a butcher’s cleaver in a horrific frenzy of violence.  

Elliot Paul Busuttil was charged with that attack and granted bail.

Less than two years later, Busuttil was arrested and charged in court again, this time with the gruesome killing of taxi driver Mario Farrugia.

Farrugia's corpse was discovered in the boot of his abandoned Peugeot 407 in the Qormi valley earlier this month.  

Many questioned: should a person accused of a violent or serious crime be even eligible for bail?

The answer to this question is rooted in human rights – precisely, the right to liberty. And a person who is facing charges in court, is still presumed innocent, according to legal experts.

Bail was not always for all

Up until 1989, Maltese law discriminated between crimes when it came to bail-granting. And a Constitutional Court ruled that that law was, in fact, discriminatory. Here’s what happened:

Maltese law – that is, Article 575 of the Criminal Code – used to allow the courts not to grant bail to people accused of any crime against the safety of the government or to a person accused of any crime liable to life imprisonment.

Murder is such a crime.

Then, in 1989, it was amended following a Constitutional Court judgment in the case of former police commissioner Lawrence Pullicino. The court struck down the blanket prohibition on bail in the case of very serious offences, ruling that the refusal of bail violated his fundamental rights as guaranteed under Article 5 of the European Convention – the right to liberty and security of person.

In 1993, Pullicino was sentenced to 15 years in prison after being found guilty of complicity in causing grievous bodily harm, followed by death to a person while under police interrogation at police headquarters in 1980.

What does the law state today?

Today, Malta’s laws do not discriminate against people accused of heinous crimes such as murder and allows them to be granted bail, subject to a number of criteria.

This is because bail is considered to be a right and a person, who is presumed innocent, should not have to fight for a right, legal experts agreed.

The granting of bail is ‘very subjective’

The law states that “the court may grant bail, only if, after taking into consideration all the circumstances of the case; the nature and seriousness of the offence; the character, antecedents, associations and community ties of the accused; as well as any other matter which appears to be relevant, it is satisfied that there is no danger that the accused, if released on bail, will:

  1. . not appear when ordered by the authority specified in the bail bond; or
  2. will abscond or leave Malta; or
  3. will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; or
  4. will interfere or attempt to interfere with witnesses or otherwise obstruct or attempt to obstruct the course of justice in relation to himself or to any other person; or
  5. will commit any other offence.

The law seeks to strike a balance between the rights of the accused and of society by allowing for cases when bail is not granted immediately.

Legal experts agree that the granting of bail is “very subjective” because it all depends on what the presiding judge or magistrate thinks about that person standing in front of the court at any given time.

The person’s criminal record, the number of witnesses who need to be brought to court to testify and the complexity of the case at hand are also taken into consideration when deciding on bail.

What about the victims?

Emil Marinov told Times of Malta that after the attack in 2020, he is still suffering from psychological repercussions. While the law allows the court to ban an accused from approaching a victim throughout the duration of a case, Victim Support Malta believes more can be done.

“In order for victims to be protected by the legal system, the risk of the perpetrator needs to be evaluated to reduce the chances of the perpetrator to re-offend,” a spokesperson for the NGO said.

The literature contends that there are several risk factors to determine whether a perpetrator would re-offend. These include drug dependency, mental health difficulties, employment, education, and previous grievous offences, among others.

“To truly protect victims, it is necessary for the legal system to undergo a thorough risk assessment taking in all of the aforementioned factors when considering to grant an alleged offender bail.”

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