How could two soldiers accused of a racially-motivated murder be given bail?

The news that Lorin Scicluna and Francesco Fenech will be allowed bail may have shocked and surprised many. But 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.

Law experts explained that anyone accused of any crime is eligible to be granted bail and that depriving someone of his or her liberty is the exception rather than the rule.

Decades ago, Malta’s laws disallowed people accused of crimes that carried life imprisonment and crimes against the safety of the government from being granted bail.

In certain jurisdictions, like Australia for example, people accused of murder are not allowed bail unless they can prove compelling circumstances, like a lengthy court delay. However, Australia’s legal system is different to Malta’s.

After Malta’s old laws governing bail were declared unconstitutional, amendments were made to the legal provision and a number of criteria were included.

The law now states: “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 not appear when  ordered by the authority specified in the bail bond; will abscond or leave Malta; will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; 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 will commit any other offence.”

In his decision to grant bail to the two soldiers accused of murdering Lassana Cisse, Magistrate Ian Farrugia examined all the criteria mentioned in the relevant legislation and said he found nothing at law to order their continued arrest, seven months after the compilation of evidence against them started.

He said that most of the civilian witnesses who were due to testify had already done so and that there was nothing to make the court doubt that the accused would not adhere to the conditions imposed when granting bail.

“There is nothing that objectively worries the court,” the magistrate said.

“The crime with which they are accused is very serious, especially in a society where racism is not tolerated in any way,” Magistrate Farrugia remarked.

“But in its considerations on whether to grant bail, pending the trial, the court made an effort not to allow it to be influenced by the fact that they could potentially be jailed for life if convicted,” he added.

He quoted a book containing guidelines on the right to liberty as guaranteed by the European Convention of Human Rights, which states that the four reasons for continuing a person’s pre-trial detention are: risk of flight; risk of interference with the course of justice; the need to prevent crime; as well as the need to preserve public order.

Even when considering these factors, the magistrate said, the court found nothing at law to cause concern, especially when considering that the two men had already spent seven months under preventive arrest.

He, therefore, granted them bail against a deposit of €30,000, a €20,000 personal guarantee and a condition to sign the bail book daily.