The ECHR has ruled on the matter already – and differently to the Maltese Constitutional Court
Franco Debono is back on his high horse – not that he ever dismounted – tilting at his least favourite windmill, Carm Mifsud Bonnici, for laziness and negligence in not reforming the law to ensure that defendants have the right to appeal against a decision to hold them on remand.
Perhaps Carm Mifsud Bonnici didn’t do anything about it because he thought it best to pay heed to the European Court of Human Rights’ ruling on this matter, rather than pay heed to a criminal lawyer with a fixation.
In the case Stephens vs Malta, the ECHR found that the defendant’s being unable to appeal against a decision to hold him on remand did not violate his right against unlawful arrest or detention.
The ECHR found that the defendant’s right – enshrined in Maltese law – to request bail repeatedly, without any limits, is effectively equivalent in effect to the right to appeal against refusal of bail.
The ECHR determined this case under Article 5 of the European Convention, which is about protection from illegal arrest. But the ruling by Malta’s Constitutional Court a couple of days ago, which contradicts the ECHR ruling (when it is not superior to the ECHR) used Article 14 of the European Convention, which has nothing at all to do with arrest and trials but is about discrimination.
The reasoning behind the Maltese Constitutional Court’s decision is that the law is discriminatory because it allows the prosecution to appeal when bail is granted, but does not allow the defendant to appeal when bail is refused.
So now we have two rulings which are in direct conflict: a European Court of Human Rights ruling that the Maltese position does not violate a defendant’s human rights and now a Maltese Constitutional Court ruling that it does. How are we to proceed?
If the government ignores the Constitutional Court ruling and honours the ECHR ruling, Franco Debono will tilt more wildly at his windmills. But if the government ignores the European Court of Human Rights ruling and decides that the Constitutional Court ruling over-rides it (a reversal of the hierarchy), then that is bad news for us because it sets a precedent for cases and situations which could be rather more unpleasant for us.
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“How are we to proceed?”
This is pretty complex, and I will have to re-read. But meanwhile, we should consider roping in Mary Mifsud of the timesonline comments board. Gotblesss, she is an expert on these matters.
http://www.maltatoday.com.mt/en/newsdetails/news/national/Illum-survey-Mintoff-did-more-good-than-harm-20120421
Kemm cempiltu nisa tad-dar waqt li jkunu qed jisimghu Super One Radio fil-kcina fl’area tal-Kottonera, sinjuri tal-Maltatoay?
In my opinion the advice of Alex Saliba should be sought.
It must be “Franco Debono uber alles”, above the Prime Minister, above cabinet ministers, above the political party on whose ticket he obtained a seat in parliament, and now above the European Court of Human Rights.
For the moment, the sky is the limit – tomorrow, the distant ever receding boundaries of the universe torn apart by the Big Bang!
It is nothing if not amazing that it had to be DCG to do some serious research on the ECHR rulings while our so-called journalists just report blandly the Constitutional Court’s decision.
It must be more important for The Times and Malta Today to raise Franco Debono’s profile (not that he needs any help) in the wake of the current political game, than to act as proper journalists and inform their readers of the ECHR decision on the matter. Well done, Daphne.
[Daphne – I can’t really accept the praise, because I had help.]
There can be an appeal from the constitutional judgement and so this judgement is not yet final. In case of a real conflict of judgements, the one granting more rights to the individual should be enforced.
In this case the conflict is more apparent than real. The judgments are conflicting in their conclusions, but the arguments they are based are not conflicting. As you pointed out they are based on different articles of law and principles.
I thought that ECHR judgments were not enforceable.
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