Turkish mothers walk out of court after prison sentence suspended on appeal

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.

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 caselaw, 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 that in this case 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, he said. 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 from 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 also the case in Malta.

The women had filed an unconditional guilty plea and 6 months was the minimum sentence possible, said the court. The punishment 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 in to Europe, those who by hook or by crook want to enter an EU state.”

The court said it would not go into the reasons why people use illegal means to enter or exit Malta, but noted that “the reasons can be many and are often not humanitarian nor noble.”

Often said the court, "it involves a circle of criminals, armed to the teeth and very organised to offer the full package for people wishing to enter the EU." Such 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 a court that she had come to join family.

The court gave a precis of caselaw where several people accused of passport offences 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 nights dream ended up a fair midsummer nightmare."
The problem is that their children are suffering, said the court. “This trauma to their family does nothing to hold people back from committing crimes, but then when their backs are against the wall they invoke the children.” The court said however that it couldn’t close its eyes to legal developments, which established principles which 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

Lawyers Gianluca Cappitta and Jason Grima appeared for the women.