Human rights court says murderer Kenneth Gafà’s rights were violated with prohibitive bail

A Maltese judge in the European Court of Human Rights has criticised the court’s statement that finding a breach of human rights was sufficient “just satisfaction”, in a dissenting opinion.

The judge was one of seven judges who decided the case of a man jailed for murdering his ex-partner in 2010.

The court had held that the human rights of Kenneth Gafà were violated when a deposit he was ordered to make to be given bail was beyond his means, the European Court of Human Rights found, but said that this finding in itself was just satisfaction.

45-year-old Marsa resident Kenneth Gafà was sentenced to 35 years in prison in 2015, after he admitted to the 2010 murder of his ex-girlfriend, Christine Sammut. 

Sammut had suffered extensive gunshot injuries to her neck, chest and hands after Gafà shot her twice at close range with a shotgun as she was sitting in her car outside a Zebbiegh bar. She had been waiting to pick up a friend on the evening of 11 December 2010.  She died of her injuries shortly after her arrival at hospital. 

Gafà  filed Constitutional cases in 2012 claiming his right to liberty had been violated by his 15-month period of pre-trial detention without bail. Ten bail requests between his arraignment and August 2012 were rejected. He filed a constitutional case in view of his prolonged detention, but the court rejected his claims and his appeal was thrown out.

He had been granted bail in August 2012 but was unable to afford the €15,000 deposit and €25,000 personal guarantee. 

A number of other attempts, by Gafà’s lawyer Joe Brincat, to have the bail conditions reduced were unsuccessful.                 

In August 2013, the court accepted that Gafà’s mother stand as surety by means of a hypothec on her property. He was released from custody after 32 months in pre-trial detention

In the meantime, on 6 February 2013 he instituted a new set of constitutional redress proceedings, complaining of a violation of Article 5 § 3 of the Convention in connection with the “exorbitant sum” requested, in particular reference to the sum set as deposit, which did not allow him to effectively enjoy bail.

By a judgment of 3 July 2013 the First Hall of the Civil Court in its constitutional competence rejected the applicant’s claims, confirmed by the Constitutional Court in January 2014.

By a decision of 7 April 2014, Gafà was found guilty of breaching his bail conditions and his bail was revoked. Further bail requests were lodged and rejected until 26 January 2015 when a bill of indictment was issued him. 

On 16 June 2015, the Criminal Court was informed that a plea bargain had been concluded between the applicant and the prosecution.

On 20 July 2015, following the applicant’s admission to all the charges against him, the Criminal Court pronounced a guilty verdict and sentenced the applicant to thirty-five years imprisonment and to the payment of court experts’ fees.

Gafà claimed €6,000 in respect of non‑pecuniary damage.

The Government submitted that the amount of non-pecuniary damage should not exceed €1,500. 

But Gafà was awarded just €3,000 in material damages by the court to cover his costs and expenses.

“The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant,” reads the judgment. 
 

Dissenting opinion

In a dissenting opinion, judge Vincent De Gaetano criticised the failure to award adequate compensation.

“Nevertheless in this case it has found that the finding of a violation is sufficient just satisfaction. Why? No reason whatsoever is given. Was it, perhaps, because the applicant was a bad guy, who eventually admitted to the murder charge and was sentenced to thirty-five years imprisonment? If that were a good reason for not granting non-pecuniary damage, then the Court should not grant a penny in the hundreds of conditions-of-detention cases before it under Article 3 – none of those detained are confined to their cells by virtue of some monastic vow!”

“By virtue of a triple somersault, the court ignored all this,” he said.

Dr De Gaetano concluded his dissenting opinion by quoting a European court case involving a Bulgarian national claiming violation of the right to liberty and security, in which it was held that: “Finding a violation of a fundamental right is no comfort for the government. Stopping there is no comfort for the victim. A moral thirst for justice is hardly different from a physical thirst for water. Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras.”