A judge has upheld an appeal filed by two Turkish teachers who had been jailed for passport offences last week, whilst claiming to be fleeing persecution in their homeland, later this afternoon.

Rabia Yavuz and Muzekka Deneri had been sentenced to 6 months in prison after they admitted to using fake identification documents to transit from Greece to Belgium. The Criminal Court, presided by Mr. Justice Aaron Bugeja handed down a judgment that will be a benchmark for future prosecutions and sentences.

The case garnered a lot of media attention because of the fact that the women were separated from their children, aged 2 and 4, who were present at the sitting and who were severely distressed at seeing their mothers being led away to prison. The children are presently being cared for by Social Services.

After retiring to chambers for two hours, Mr. Justice Aaron Bugeja read out his judgment. The extensively researched judgment criticised the prosecution for bringing the children to the arraignment, saying that “young children should not be brought into court unless absolutely necessary. It can be traumatic for adults, much more so for children. It is mentioned in the rules of court that it may be taken as contempt of court if children under 13 are brought into court.”

When the case was called in the afternoon, the court said that punishment had a retributive, preventive and rehabilitative function. Quoting author Carnelotti, it said the reason for retributive punishment was to establish the moral balance, preventive meant to create fear of the consequences before the criminal act is committed and then where was the rehabilitative aspect, to reintegrate the offender into society.

Quoting case law the court said it was “somewhat odious” to change a punishment after an admission as it was taken that the person was submitting fully to the judgment of the court. The judge said he had to investigate whether the punishment was in parameters, excessive or manifestly excessive or wrong in principle.

He noted that the two defendants had pleaded guilty at arraignment stage and the court of first instance had the luxury of hearing the prosecuting inspector explain the factors and circumstances surrounding their arrest. “There at least the court had a picture of what led to the police taking action. But as a rule, the Court of Magistrates doesn’t record these submissions. This is a practise adopted by all magistrates and not only the magistrate involved, who the court knows is diligent and very good at her job.”

The court noted that contrary to that argued by the AG, the UK factored in whether the accused had young dependants in handing down punishment. The same applied to the Irish legal system and the South African one, said the judge, reading out from judgments which dealt with the principle of ‘best interests of the child.’ This principle was not to save errant parents punishment but to save the children from harm, said the judge.

These judgments showed clearly that criminal courts, although not precluded from jailing parents, must consider carefully the implications and if so sentenced they must be held in specialised mother and baby units, said the judge. The court said it couldn’t see why this was not the case in Malta.

The women had filed an unconditional guilty plea and 6 months was the minimum sentence possible. It did not go beyond the parameters of the law and was the minimum which the court could have given, said the judge. The judgment was not wrong in principle either, said the court, as it could in certain circumstances affect the safety of the country and because the number of such crimes has exploded upwards in recent years. “Evidently, Malta is being used as a place of transit for people coming out of Europe, by hook or by crook enter an EU state.”

The court said it would not go into the reasons why people use illegal means to enter or exit Malta. “The reasons can be many and are often not humanitarian or noble.”

"It involved a circle of criminals, armed to the teeth and very organised to offer the full package for people wishing to enter the EU." These cases must be dealt with by the courts on their individual merits, said the judge.  

The court said it thought about the matter at length and looked at other jurisdictions’ treatment of such cases. Not because they were binding but because this research could help its final judgment.

"One of the arguments raised by the appellants is that different punishments were handed down in similar cases. This is true. This court said that as a rule a prison sentence is required, full stop."

But dependants also need a primary caregiver said the court. There were cases where for humanitarian reasons, a prison sentence was commuted to its suspended form.

The court said it could not agree with the “generalisms” in the AG’s arguments. “It is true that everyone can be a parent but not everyone can end up in the situation of the appellants.” It is also true that the courts sometimes give lesser sentences, said the court. In one case a Syrian woman had been given a 6 month sentence suspended after telling the court that she had come to join family.

The court gave a precis of case law where several people had been given suspended sentences. “These are the minority,” said the court, adding that it is a deviation from the norm. “These courts hung on to the element of discretion they had to give a suspended sentence.”

The court said that in this case it was not the Court of Magistrates who made the mistake but that if anything it was the appellants who put themselves and their children in legal peril. "They brought about the forced separation themselves. First when they left the fathers and secondly when they entered Malta illegally. With all due respect, they knew they were going to commit an illegality….instead of a midsummer night’s dream ended up a fair midsummer nightmare."

The problem is that their children are suffering, said the court. “This trauma on their family does nothing to hold back people from committing crimes, but then when their backs against the wall they invoke the children.” The court said however that it couldn’t close its eyes to legal developments. They are principles who apply to everyone equally.

The court said it could not generalise but had to treat every case on its merits. Not every person who travels with children will be in the same circumstances. The state could equip itself to better deal with such cases, including the creation of mother and baby units in prison or alternative structures to prison, with the professional support required to mitigate the harm done said the judge.

 

For these reasons, the court suspended the 6 month prison sentence for 2 years.

Earlier in the day

The judge pointed out to both parties that there was a lack of evidence on which he is to decide the case, at one point candidly telling lawyer Etienne Savona from the Office of the Attorney General that "with regards evidence, in this case there is nothing, xejn, nil, zero, kaput."

"I cannot accept new evidence at this stage," the judge reminded the parties, saying that "tangible proof is almost non-existent and everything is in the air. I am looking for common ground.

"Secondly, the finding of guilt was on the use of false documents, but there were other documents in their possession. Have we established that these women are in fact who they say they are?" asked the court. The lawyer later told the court that he was informed that the fake documents were only the non-Turkish ID cards.

The court, leafing through the file and the documents, observed that there was some confusion as to the details in the charge sheet. "It's a jigsaw puzzle," commented the judge.

Neither was there an indication that the children spoke a language commonly spoken in Malta. "The parents do not speak English. The probability is no," said Savona, in reply to a question by the court.

Answering another question, Savona said the women were not found to be carrying large sums of money, but said that a Shengen Information System alert had been issued on Deneri. However, the court was not provided with a copy of this alert and said that it alone would not constitute sufficient evidence, anyway.

The judge asked whether there was a division or some sort of arrangement for mothers and babies in prison. Savona explained that he did not know the structure of the prison and was unable to answer. The court said it was not aware of any equal treatment bench book, similar to that used in the UK.

The AG lawyer argued that giving a suspended sentence would effectively remove the deterrent against the use of false passports and create an imbalance in punishment even with the men who were arraigned together with them.

The police rushed their prosecution - Grima

But the women's counsel, lawyers Jason Grima and Gianluca Cappitta argued that the AG was leaving out some of the facts. "They left Greece on false documentation and stopped to Malta in transit to Belgium," he said. "They were not even aware of having to stop in Malta, thinking that the stopover would happen in Italy. The men with them were simply facilitators," he added.

"The AG is saying that the sentence should not change because they are parents, as half of CCF's inmates are parents. But their circumstances are different. You have two people here who were teachers, two children now under child protection services."

"They left Greece because they were not given the protection they deserved because of their political leanings," argued Grima.

The court pointed out that there was no evidence of this in the file. "It is a cold truth. I can choose to believe you or not believe you," said the judge.

"The truth is that the police rushed their prosecution of the four people," said the lawyer. The case file contained "just a few papers", he said.

Even a simple search on the internet would reveal Erdogan's human rights background, said Grima. The court pointed out again that there was no indication of their troubles with the Erdogan regime in the acts of the case. Yavuz had filed an application for asylum in Greece, observed the judge.

"That is an immensely bureaucratic and defective process," Grima said, "which doesn't give the desired protection to asylum seekers and refugees. They were seeking asylum because of persecution and not because they didn't have money," he pointed out.

"Today they have applied for asylum in Malta, as it was the first country that they were able to do so in. The case was a rushed one. In Greece, the only document they gave them was a document saying that they needed to leave the country within 6 months, which goes to show that they weren't going to grant them asylum," he said.

Mr. Justice Bugeja, looking at the case, said that the problem was not the decision by the magistrate, who he said was one of the best on the island, but the fact that it was an admission of guilt in summary proceedings. "That doesn't leave you much to work with," he observed.

Bugeja said that the appeal stage is one of revision. "Here the appeal court must leap into the abyss, qabza fid-dlam. It's not on. I am constrained here to ask if it is true that they are who they say they are. An element of evidence must be here. Were they really members of Gulen and helped in the coup?"

Grima suggested that if the women's asylum application was not upheld, then they could be prosecuted.

"If they made an asylum application and I am not in possession of any evidence. I must be careful in handing down judgment. Go slow. I only have this evidence," said the judge, waving the thin folder.

Bugeja said he had already studied this case carefully due to its sensitivity. "The problem is that...the court isn't going to decide on the circumstances, but on the punishment as it was the ground for the appeal."

Grima clarified that he was not arguing that having children meant never going to prison, but that the children in this case were suffering needlessly.

On the deterrent argument, he said "a deterrent is good but a reformative element is more important. If you are escaping death, a six-month stint in jail is not a deterrent."

The court lamented the absence of sentencing guidelines in such cases and pointed out that using false passports "is the only crime that is almost uniformly punished."

Grima pointed out outliers where suspended sentences were handed out. "The court has the tools to impose community service, but this is not ingrained as a sentencing practise," rued the lawyer.

In his submissions, lawyer Gianluca Capitta argued that the women's arraignment had been a rushed one that deprived them of the opportunity to apply for asylum before arraignment.

He exhibited an exchange of emails sent from prison indicating that their intention was to apply for asylum.

The lawyer also pointed out that several sentences, both local and foreign, recognised that the Convention relating to the Status of Refugees article 31 stated that "the contracting state shall not impose penalties" on persons fleeing persecution. 

The judgments say that in order for this article to apply, one need not arrive directly from the threatening country, explained the lawyer.

"Of note is the fact that three of these judgments, amongst them that of the ECHR, acknowledge that there is a defect in the process for asylum in Greece. You have people who left Greece using deceptive means and when they applied for asylum, Article 31 was applied."

The court however said it could not make a pronouncement on article 31 without evidence "as it would be wrong either way."

"I understand your argument, but it is dangerous to use it as a ground for appeal," said the judge.

Today there is evidence of them applying for asylum said Cappitta, adding that he only wanted to bring this point to the attention of the court.