Judge declares law preventing indicted persons from challenging their arrest unconstitutional

A judge has declared that the impossibility of challenging the legality of the arrest of a person under a bill of indictment is an unconstitutional loophole that breaches fair trial rights.

This emerges from a judgement handed down by Madam Justice Joanne Vella Cuschieri, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, in the case filed by Aleksander Stojanovic this morning.

Stojanovic is indicted for the 2018 murder of 42-year-old Walid Salah Abdel Moteleb Mohamed in Gozo, had requested the recusal of madam justice Edwina Grima, before whom Stojanovic was due to go on trial.

The body of Mohamed, an Egyptian father of two, had been found in a field in Għarb, Gozo, in January 2018 with shotgun wounds to his neck and chest.

Stojanovic, who is from Serbia, is also indicted for carrying a weapon without a permit, driving a car without a licence or insurance, and of being in possession of a vehicle which was not properly registered with Transport Malta. 

The accused has been held in preventive custody since his arraignment in 2021 as all of his applications for bail have been denied and those denials confirmed on appeal.

His trial has also been delayed by an unprecedented series of four recusals by the judges assigned to his trial.

Stojanovic’s lawyers, Franco Debono and Jose Herrera, had filed Constitutional proceedings, arguing that the fact that the law does not contemplate habeas corpus cases - a legal procedure meant to challenge the legality of a person’s continued arrest - after the bill of indictment is issued at the end of the compilation of evidence, breached his fundamental rights to freedom from arbitrary arrest and his right to liberty.

In their replies, the Attorney General and State Advocate argued that Stojanovic had other remedies of a less drastic nature available to him. There was no doubt that his state of arrest was legal, they argued, as it had been declared to be valid during his arraignment and because all of his subsequent bail applications, both to the Court of Magistrates as well as to the Criminal Court, had been rejected.

They argued that it was “rather exceptional” to have all the judges who usually preside over the Criminal Court be unable to hear this case. “It is unfortunately a statistical anomaly.” 

There was no denying that for a period of at least 30 days, the case had not been assigned to any judge, leaving the defendant’s bail applications in suspended animation and depriving him of the opportunity to challenge his detention, submitted the defendants.

But the Attorney General and State Advocate also argued that the habeas corpus remedy does not exist after the bill of indictment is issued, “but it does not exist because the law addresses this ordinary situation, whereby if you wish to have your arrest examined, you file a bail application.”

Judge Vella Cuschieri upheld Stojanovic’s first request and declared that he had been detained for 34 days without access to a legal remedy, but declined his request to order his immediate release, on the grounds that it did not have access to the evidence file relating to his criminal case, as well as the fact that when his bail application was finally heard in court last June, it had been denied anyway.

Because of this, a declaration that his rights had been breached in the 34 day period was a sufficient remedy, ruled the judge.

But this was not a sufficient remedy from the legislative aspect, added the court. Remarking that the case in question, although an exceptional one, was “a clear example that should show the legislator that this remedy should also be available to persons against whom a bill of indictment has been issued and not only to those against whom it had not yet been issued.”

Stojanovic was awarded €500 by way of compensation.

The judge also ordered that as soon as the appeal timeframe expires, a copy of the judgement is to be delivered to the Speaker of the House, as is required by law.