A year since his five-year drug-related jail term was quashed by the Constitutional Court in a landmark judgment focusing on the sworn statement given before a magistrate, kidney transplant patient Christopher Bartolo’s nine-year saga is still not over. 

Court proceedings against Bartolo date back to 2013 when police discovered 167 grams of cannabis resin at his Gozo home, triggering criminal charges in his regard. 

The suspect was interrogated by the police as soon as he returned home from a gruelling routine dialysis session. 

His statements, given without the assistance of a lawyer since Maltese law did not provide for that right at the time, were later successfully challenged and were declared inadmissible because they were in breach of the accused’s fundamental right to a fair hearing. 

However, the statement he had registered on oath before the inquiring magistrate was still exhibited in evidence in the records of the case. 

That statement was eventually declared inadmissible even though an impartial magistrate had taken down Bartolo’s sworn declaration.

Meanwhile, Bartolo had been found guilty by the Criminal Court and condemned to a five-year term of imprisonment. 

His lawyer filed an appeal, while challenging the accused’s statements before the constitutional courts. 

In April last year, the Constitutional Court declared Bartolo’s statement before the magistrate to be removed as evidence, ordered the Criminal Court conviction to be quashed and that Bartolo be placed in the pre-judgment stage. 

Following that judgment, Bartolo’s lawyer withdrew the appeal against the conviction.

“There is nothing to appeal against as the judgment was declared null,” pointed out Bartolo’s lawyer, Franco Debono who explained that he had stepped in to assist the accused at appeal stage. 

For a whole year, Bartolo was in legal limbo until the case was assigned last month to Madam Justice Consuelo Scerri Herrera presiding over the Court of Criminal Appeal. 

Herrera immediately fixed a hearing for Tuesday. 

The lawyer who had assisted Bartolo before the first court had asked the judge to stay proceedings until the accused’s breach of rights claims were decided. 

But the judge had turned down that request and proceeded to judgment. 

“That is why constitutional points should not be considered as a waste of time,” argued Debono, highlighting Bartolo’s predicament as a person suffering from a serious illness who was sentenced to jail, only to have that sentence annulled by the constitutional courts. 

“It is a grave injustice,” said Debono.

“There was an admission,” pointed out deputy Attorney General Philip Galea Farrugia, who was summoned to represent the AG’s Office.

“It was Hobson’s choice for him [Bartolo],” rebutted Debono. 

But where did all this leave Bartolo?

His lawyer said that since the conviction was annulled and the accused’s statement removed, the case had now acquired a new dimension. 

Moving back the clock, the case was now about some 100 grams of cannabis rather than one kilo of the drug as mentioned in the statement. 

Bartolo’s lawyer requested the AG to issue a counter-order so that the records could be sent back to the Magistrates’ Court where Bartolo would be a likely candidate to have his case decided by a Drugs Court. 

The prosecutor, however, disagreed, saying that Debono’s suggestion was not “a legally sustainable procedure” and that the case was to be sent back to the Criminal Court because it was that court’s judgment which had been annulled. 

Madam Justice Scerri Herrera deferred that case to June for information about the AG’s position on the matter.