Court to decide on paradigm shift in fake travel document prosecution practice

Lawyers for Hamid Afou, a Syrian man arrested at the airport on a connecting flight from Greece over a false ID card, have argued that the Principal Immigration Officer, who prosecutes such cases, is not legally empowered to do so.

The man’s appeal against his passport-related conviction has highlighted a flaw in the way such cases are prosecuted, and could lead to an avalanche of acquittals and Constitutional cases, if accepted. Many such cases have been decided with arraignments on false travel documentation happening almost every day.

In late July this year Hamid Afou from Syria had been arrested at the airport upon his arrival from Greece. An immigration official had suspected that Afou’s Greek ID card was forged and he was subsequently arrested.

The Syrian was charged with falsifying or being in possession of a falsified identification document, with using a falsified identification document and the use or possession of a falsified immigration document.

Assisted at the time by legal aid counsel, Afou had pleaded guilty upon arraignment and was sentenced to 6 months in prison.

After being convicted, the man had changed lawyers and filed an appeal. His new lawyer, Arthur Azzopardi, argued that the arraignment and all subsequent proceedings were null, because the Principal Immigration Officer, who usually prosecutes such cases, is not legally empowered to do so.

The Criminal Code does not give the Principal Immigration Officer the power to accuse and prosecute anyone, said the lawyer. The Immigration Act only gives this public official the right to arrest but not to prosecute and the Passport Ordinance says nothing about any powers of arrest.

“Therefore these proceedings, in the humble opinion of the plaintiff, are null…” reads the appeal application.

Moreover, the charge of falsification under article 5 of the Passport Ordinance was “astutely and misleadingly” changed, with references to “passport” being replaced with “documents” in the charges.

“Such behaviour is embarrassing and shameful,” argued Azzopardi, accusing the Principal Immigration Officer of “feeling he has the power to change the elements of crimes from that stipulated by the legislator.”

The Passport Ordinance clearly defines what a passport is and is clear that this doesn’t include an identity card, argued Azzopardi.

In addition to all this, Afou had cooperated with the prosecution and made an early guilty plea, said the lawyer, submitting that in handing down the 6-month sentence, the first court had “failed to perform a holistic appreciation” of the facts of the case.