Court decrees Syrian men accused of terrorism offences have a case to answer, clearing way for trial

A court has cleared the way for the indictment of two Syrian nationals on terrorism-related offences, decreeing that there was a case to answer.

Farhan Mohammed Sheikh, 29 and 23-year-old Abdullah Aliwi, both from Homs in Syria are accused of knowingly and publicly inciting or promoting acts of terrorism, recruiting people to carry out terrorist acts or to travel abroad to terrorist training camps and with training or instructing people in the use of explosives, firearms or other weapons for terrorist purposes.

They were further accused of having received such training themselves aimed at committing or contributing to terrorist actions, financing or organising recruits’ overseas travel to training camps and with creating terrorist propaganda material.

The men are also facing other charges, relating to inciting, aiding or abetting the commission of terrorism-related offences, criminal conspiracy, setting up or joining an organisation that is trained and equipped to advance a political ideal. Lastly, they are accused of promoting, organising or financing a criminal organisation.

The defendants’ lawyers had argued that there was insufficient evidence to indict them.

Magistrate Marseanne Farrugia disagreed, however, quoting at length from judgments and academic publications about the level of proof required for indictment.

In a decree handed down on Friday, the magistrate declared that there was sufficient evidence to merit their indictment, sending the acts back to the Attorney General, who will now decide on how to proceed.

The court said that although it was aware of judgments which had held that the level of proof at this stage need only indicate the probable guilt of the persons accused, it was of the opinion that the level of proof should, in fact be slightly lower - hovering somewhere between possible and probable guilt.

“Any different interpretation would mean that there is no distinction in the civil law sphere regarding the level of proof between a decision taken on a prima facie basis and a decision on the merits, because both proceedings would therefore require proof to the level of probability.” This interpretation would obviously lead to absurd conclusions in civil cases, said the court, and so the burden of proof for prima facie had to be less than that on a balance of probability.

The magistrate said she also believes that the meaning of ‘proven to the prima facie level’ should be the same throughout the Maltese juridical system, “wherever it is used, both in the civil and in the criminal law camps.”

For the purposes of the case at hand, said the magistrate, it was enough that the court be satisfied that the prosecution had exhibited sufficient evidence that could “legally and reasonably” lead a judge, magistrate or jury to find guilt, even if that conclusion could still be debated.

Applying this to the case before her, Magistrate Farrugia observed that the evidence exhibited showed that both of the defendants had materials on their phone related to the Islamic State terrorist group, “including videos of people being killed by this terrorist group, nasheeds (Islamic hymns) related to this terrorist group and subscriptions to Telegram channels to receive material related to this terrorist group.”

The court noted that the defence was not contesting this state of fact, but was arguing that the simple fact that they had received the material did not constitute the criminal offences with which they are charged. “According to the defence, the accused were not promoting or spreading the interests of the Islamic State and the simple fact of having sympathies with a terrorist group did not constitute a criminal offence,” noted the court.

Stressing that it was not empowered to deal with the merits of the case at hand, the court said that after seeing the evidence exhibited so far, it was satisfied that there was a case to answer which merited further investigation. It sent the acts of the case to the AG in order for a bill of indictment to be drawn up and the men be tried before the competent court.

Lawyers Jose Herrera, Franco Debono, Matthew Xuereb and Martina Herrera are defence counsel.

Inspectors Jean Paul Attard and Zachary Zammit are prosecuting, assisted by lawyers Antoine Agius Bonnici, Francesco Refalo and Rebekah Spiteri from the Office of the Attorney General.