A man who is facing criminal proceedings on charges of defrauding several government departments of around Lm89,000 has filed an application claiming that his right to a fair hearing has been breached.

Alphonse Abela, former secretary of the Public Transport Association, filed the application before magistrate Antonio Micallef Trigona. He explained that he had originally been arraigned in court between January 2000 and December 2001, charged with defrauding a number of government departments.

He continued that, in April 2003, he was discharged as the Magistrates’ Court declared there was insufficient prima facie evidence for a bill of indictment to be issued against him.

However, one month later, Mr Abela was rearrested after the Attorney General filed an application for an arrest warrant under the terms of Article 433 of the Criminal Code. This article states that the Attorney General has the power to request the re-arrest of a person discharged by the Magistrates’ Court if he and a judge agreed that there were, in fact, sufficient grounds for the person to be indicted.

Earlier this year, in the case against Joseph Lebrun, a Constitutional Court ruled that Article 433 was likely to breach a person’s right to a fair hearing and as a result of this judgement, parliament approved a bill amending the Criminal Code and this article was amended.

The amended version of Article 433 gives the person involved the right to contest his re-arrest and also stipulates that this process (the request for someone’s re-arrest) takes place in open court. The amended version, approved by parliament, was made retroactive and included all those cases in which people had been rearrested on the basis of this article, which had been declared anti-constitutional. It gave the prosecution one month from when the amendment was enacted – 27 April – to regulate its position with regard to these cases.

Mr Abela claimed that more than one month had passed since this amendment was enacted and the prosecution had not regulated its position. As a result, he claimed, whatever happened in May 2003 was in breach of his right to a fair hearing.

He therefore requested the court to rule that he be placed in the same position he was in before the Attorney General filed the request for his re-arrest and therefore be discharged once again.

Dr Franco Debono signed the application.