A court has turned down a request for the immediate release of a man serving one and a half years in prison over drug offences who claims that his arrest and imprisonment was illegal.

Trevor Bonnici, 40, had been found guilty by a magistrate’s court and the judgement was later confirmed on appeal. But Mr Bonnici’s lawyers, Jason Azzopardi and Julian Farrugia, argue that the man should have never been found guilty because the only incriminating evidence was a statement he had released without the assistance of a lawyer. This, they say, was in breach of his fundamental rights.

Mr Bonnici had released the statement in 2004 but was only sentenced in February 2015. The sentence was confirmed in December of the same year. In January Mr Bonnici filed a judicial protest but the Attorney General’s Office has not yet replied.

Dr Azzopardi and Dr Farrugia filed a court application today – the first time that a habeas corpus (illegal arrest) challenge was issued by a person who is already serving a jail sentence.

They quoted a recent ruling by the European Court of Human Rights which found that another man, Mario Borg, had had his rights breached. Mr Borg, who was also jailed on drug trafficking charges on the strength of a statement he had made without the assistance of a lawyer, was awarded €3,500 in compensation. He is, however, still serving his prison sentence since the ECHR does not revoke jail sentences handed down by national courts and can only provide a remedy.

Dr Azzopardi said the ECHR sentence had put Malta to shame. The Maltese courts, he said, had completely disregarded that sentence, which made it clear that Mr Borg had had his fundamental rights breached.

Lawyer Giannella Camilleri Busuttil, for the Attorney General, argued that proper procedure was followed in 2004 since the right for legal assistance had not yet come into force at the time. She said the same arguments being made by the defence today had been rejected by both the magistrate’s and the appeals courts. The sentence was valid and the defence’s request was frivolous, she said.

In a decree this afternoon, Magistrate Ian Farrugia said he could not free Mr Bonnici from prison since he was not presiding over a constitutional court. The case is now expected to be taken up to constitutional level.

In the meantime, Mario Borg, through his lawyers Franco Debono, Amadeus Cachia and David Camilleri, has filed a constitutional application requesting the court to declare that his rights were breached, as declared by the ECHR. The application also calls for his sentence to be revoked or for a retrial.