The magistrate who led an inquiry into the death of a Nigerian man at the Ħal Far detention centre in April 2011 had concluded that there were no grounds to arraign any soldiers or detention services officers over the case, The Malta Independent can reveal.
Three members of the Armed Forces of Malta - Lieutenant Roderick Azzopardi and Lance Bombardiers Aldo Simiana and Carmen Camilleri - were nevertheless charged with the involuntary homicide of Ifeanyi Nwokoye last February.
A number of witnesses had recounted seeing Lt Azzopardi hit Mr Nwokoye repeatedly after his recapture; the two other defendants were accused of failing to ensure that standing orders were followed - that a captured detainee should immediately be seen by a doctor.
But in the procès-verbal of his magisterial inquiry, a copy of which was seen by this newspaper, Magistrate Antonio Micallef Trigona noted that post-mortem examinations ruled out any link between bruising found on Mr Nwokoye's body and his death.
The report points out that, "Since it has been ascertained that the detained migrant died of cardiac arrest secondary to myocardial fibrosis... it is difficult to conclude that involuntary homicide - let alone voluntary homicide - took place. In the circumstances, the migrant's death was unpredictable due to his medical condition - the 'lymphocyte infiltration and fibrosis' present in his heart - combined with the exhaustion resulting from the escape attempt."
The magistrate later added that the only crime which may have taken place was the infliction of slight injuries by Lt Azzopardi, but noted that no criminal proceedings could be launched because the period of prescription had elapsed.
However, Magistrate Micallef Trigona highlighted that Mr Nwokoye was subjected to inhumane treatment, "primarily but not limited due to the fact that he was not immediately taken to a polyclinic and was not given immediate medical assistance, particularly given the state he was visibly in".
It was on this point, it seems, that the prosecution ultimately decided on arraigning the three defendants.
Several witnesses claim officer struck victim repeatedly
Mr Nwokoye was one of six men who escaped from the Safi detention centre on the night of 16 April, 2011, and one of two who was recaptured that same night.
The escape took place at around 9:30pm, as Lance Bombardier Martin Blundell was relieving Detention Services officer Joseph Cachia from guard duties at Block B.
But as L/Bdr Blundell opened the gate, a group of detainees charged at him, causing him fall and hit his head and sustain a gash that required stitches. By the time he managed to close the gate six men had escaped, but Mr Nwokoye and Algerian national Oukil Yousef were recaptured shortly afterwards.
The two men were taken to the Ħal Far detention centre as the Safi centre lacked isolation cells. But while Mr Yousef could walk unaided, Mr Nwokoye had to be carried into the Detention Services van and into his isolation cell, which was being guarded by L/Bdrs Camilleri and Simiana.
But it was only after some time had passed that it was that Mr Nwokoye was unresponsive. His heart had stopped beating by the time he was taken to Mater Dei Hospital, and he was certified dead at 12:28am.
Lt Azzopardi was on a 24-hour shift as the detention service duty officer when the incident took place, overseeing all detention centres. Various Detention Services officials told the magistrate that they had seen him strike Mr Nwokoye repeatedly after finding a metal object - a rung from the ladder of one of the detention centre's beds - in his possession.
Mr Cachia said that Lt Azzopardi hit Mr Nwokoye so much that he got out of breath, and that another man kept telling him to stop and even tried to help Mr Nwokoye dodge the blows.
On his part, Lt Azzopardi denied beating Mr Nwokoye. But he also revealed that when he found him unresponsive, he called Detention Services commander Lt Col Brian Gatt, who advised him to administer CPR.
However, it turns out that neither Lt Azzopardi nor anyone else present knew how to carry out the procedure, a fact which, according to Magistrate Micallef Trigona, was evidence of the amateurish manner in which things were handled.
Mr Yousef was found to have suffered a black eye, and he insisted that he had been punched by L/Bdr Simiana. But the soldier denied the claim, and no one else who was present corroborated it.
The incident had received renewed attention following the death of another man in the custody of the detention services: Malian asylum seeker Mamadou Kamara. A post-mortem had found that Mr Kamara had not died of natural causes: he had suffered multiple violent blows in the groin and lower back.
Sgt Mark Anthony Dimech and Gnr Clive Cuschieri were subsequently accused of involuntary homicide, while Lance Corporal Gordon Pickard was accused of obstructing justice.
It received further attention this month when Prime Minister Joseph Muscat published a report on Mr Kamara's death which was drawn up by retired judge Geoffrey Valenzia, in which references to the Nwokoye case were made. A separate inquiry into the Nwokoye case, led by Martin Scicluna, is yet to be published.
But the Valenzia report does outline that the inquiry led by Mr Scicluna recommended that disciplinary action should be taken against Lt Azzopardi, Bombardier Aaron Testa - who reportedly kicked Mr Nwokoye, although the testimony heard during the inquiry was somewhat conflicting - L/Bdr Blundell and L/Bdr Simiana.
Lt Col Gatt maintained that he had himself sought to take disciplinary action, but then-Home Affairs Minister Carm Mifsud Bonnici advised him to leave things as they were for the time being, as the case was being investigated by the police.
The present government is insisting that Dr Mifsud Bonnici must shoulder responsibility over what had happened, but the MP denies any wrongdoing. He has argued that there is a strong legal opinion that disciplinary action could have scuttled criminal proceedings due to double jeopardy.
In any case, the magisterial inquiry was concluded in August 2012 - after Dr Mifsud Bonnici lost a parliamentary vote of confidence and resigned his post - and the case only led to an arraignment last February.
Provided the former minister's argument about the risk of double jeopardy is valid, there is little he could have done when it came to disciplinary action. Whether more could have been done to address problems inherent to the operation of detention centres is, of course, another matter entirely.
The Valenzia report also quotes Lt Col Gatt as stating that in the wake of Mr Nwokoye's death, then AFM commander Martin Xuereb had described Lt Azzopardi as the "worst of the worst" AFM officers after the incident took place.
But curiously, in spite of this assessment, Lt Azzopardi's promotion to the rank of captain was announced on 5 March, 2013, four days before the general election.
Bruise found, but 'no signs of violence'
Magistrate Micallef Trigona's own conclusion that there appeared to be no grounds for prosecution was based on post-mortem examinations, whose findings are included in the procès-verbal.
But while the evidence was enough for the magistrate to conclude that Lt Azzopardi had actually beaten Mr Nwokoye, the autopsy contradicts claims that the man died as a result of any injuries caused.
Court-appointed forensic expert Mario Scerri even goes as far as stating that there were no signs of violence on Mr Nwokoye's body, despite the presence of a bruise - caused by blunt trauma - in his chest wall. But both Dr Scerri and pathologist Safraz Ali agreed that the bruising did not contribute to Mr Nwokoye's death.
A separate report by Dr Ali and fellow pathologist Marie-Therese Camilleri notes that "there is a small haemorrhage in the intercostal muscles on the right side in the mid-axillary line at the level of the 7th and 8th ribs, but there are no fractures of the underlying ribs".
Dr Scerri had also been appointed to give forensic evidence in the Kamara case. As it happened, the direct cause of death in Mr Kamara's case was also a heart attack, but in this case the court expert had made it clear that violence was a cause. During the magisterial inquiry into Mr Kamara's death, Dr Scerri had testified that the Malian man died due to a cardiac arrest "resulting from a vagal inhibition due to severe pain as a result of blunt trauma".
Magistrate Micallef Trigona, however, appears to rule out any link between the failure to provide Mr Nwokoye with immediate medical assistance and his untimely death. While a number of standing orders were presented to him as evidence during the inquiry, the order that recaptured escapees should immediately be sent for medical treatment was not.