Two days from today, on 28 March 2023, four years would have elapsed since three teenagers were arrested in Malta for alleged terrorist charges in relation to an incident that took place during March 2019, when around one hundred migrants were trying to leave Libya. It happened that the migrants, on their drowning boat, were rescued by a vessel – the El Hiblu 1 – that was sailing towards Libya, the place from where the migrants had departed. Inevitably, once they learnt that they were returning there, they requested that the ship changes its course, which it did. They landed in Malta.
The three teenagers aged 15, 16, and 19 were arrested and charged on 30 March 2019 in court with committing several offences, the most serious being those attracting a punishment of life imprisonment. The main charges were brought under article 328A of the Criminal Code that criminalises ‘acts of terrorism and terrorism activities’. The term ‘terrorist activities’ is defined in the Code. Nevertheless, a reading of the definition raises serious doubts as to its applicability in the El Hiblu 1 case.
The United Nations High Commissioner for Human Rights, way back on 7 May 2019, appealed to the Maltese authorities to ‘reconsider the terrorism charges’ and commented as follows: “In spite of the fact that two of them are minors, all three of the accused were held in the high-security division of an adult prison after they were reportedly interrogated by the authorities without being appointed legal guardians or placed in the care of independent child protection officials, responsible for ensuring their best interests. We have made our concerns clear to the Maltese authorities about the treatment of the three young migrants and what we believe to be exaggerated charges against them, and urged them to reconsider the charges”.
Human Rights Considerations
Apart from the above allegations that entertain human rights implications, including issues relating to inhuman and degrading treatment, and, should this be the case, interrogation being carried out without legal counsel, there are, indeed, other human rights avenues in this case that are still open for the defence team to exhaust in the courts of constitutional jurisdiction and, if need be, at the European Court of Human Rights. There are also rights that might have been breached in relation to the unaccompanied migrant minors in detention considering the conditions of detention alluded to above by the UN Commissioner for Human Rights, both under the European Convention on Human Rights and the Convention on the Rights of the Child.
Further, there are two sorts of human rights possible infringements that require investigation: first, the unreasonable delay in having this case concluded speedily and definitively bearing in mind that four years on it is still in its initial stage, and second, the disproportionality of the charge.
Justice Delayed, Justice Denied
The first point worth considering is whether there has been excessive delay in this case. The three youngsters were charged in court on 30 March 2019, that is, four years ago. According to a report in a local newspaper of 12 April 2022, all the witnesses had testified.
Since then, nearly another year has elapsed and, so far as this author is aware, no bill of indictment or nolle prosequi (abandonment of prosecution) has been issued by the Attorney General, meaning that this case is still active, with the records of proceedings toing and froing between the Office of the Attorney General and the courts supposedly to produce further evidence.
On 29 September 2022, the Attorney General was in receipt of a petition signed by over 1,000 persons and organizations requesting her to dismiss the case. The Prosecution’s case has not yet been concluded even though nearly four years have elapsed since the charges were originally proffered in court. A decision still is to be taken whether to issue the bill of indictment on the original charges of terrorism or not and, if and when issued, a trial by jury has to be convened. By the time this is done – and bearing in mind the backlog of pending jury trials – more than four years (to say the least) would have elapsed. The same would apply if the terrorism crimes are dropped and the accused brought before the Court of Magistrates as a court of criminal judicature for its judgment on the remaining charges (rinviju għal ġudizzju).
Disproportionality of the charges
A second human right that is worth considering is the disproportionality of the charge. Do the facts of the case as they have emerged from the court proceedings point in the direction of an act of terrorism as defined in the Criminal Code? Of course, it is not up to this author to determine this point once the court record is not available for public inspection and he is therefore not privy to, and cannot appraise, the evidence collected therein.
However, there might still be a case to answer for in this instance, bearing in mind the authoritative pronouncement of the United Nations Commissioner for Human Rights and the said over 1,000 persons and organizations who signed a petition addressed to the Attorney General requesting the charges to be dropped. Of course, the Attorney General is bound by none of these but by the evidence that resulted in court. If the Attorney General is satisfied that the charges are substantiated by the evidence produced, her office will have to proceed with filing the bill of indictment or a referral for judgment by the inferior court if no terrorism charges result; if not, a nolle prosequi will be entered and no further proceedings will take place with the three persons charged being freed.
If the Attorney General opts to prosecute, then consideration has to be given as to whether there is sufficient evidence to back up all the charges, especially those related to terrorism, as the bone of contention appears to be in relation to these offences. If there is no such evidence of an act of terrorism or terrorist activity as understood by the Criminal Code, then these charges would have to be dropped and the minor charges considered. If the minor charges hinge upon and cannot be prosecuted in the absence of the main charges, then the whole case drops.
Irrespective of whether the charges were disproportionate or otherwise, there is surely one human right that might have already, or is on the verge of, being infringed and that concerns the court delays. The judgments of the European Court of Human Rights are clear on this. But it is also relevant to keep in mind, once the record of the criminal proceedings is at the referral (rinviju) stage, the judgment of the Civil Court, First Hall (Constitutional Competence) presided by Mr Justice Ian Spiteri Bailey in the names ‘Il-Pulizija (Spettur Johann J. Fenech) vs. Sebastian Dalli’ delivered on 11 July 2022. This judgment was critical of the Office of the Attorney General for abusing the referral procedure bringing about an inevitable hardship to the accused awaiting justice. Hence, it is incumbent upon the Attorney General in the El Hiblu 1 case not to repeat the court censored conduct and, instead, ensure that the three lads are afforded a speedy determination of the charges levelled against them.
When, if at all, will justice ever be meted out to the three youngsters implicated in the El Hiblu 1 case?
Kevin Aquilina is Professor of Law at the Faculty of Laws of the University of Malta