First Floor, Victoria Buildings, 8, Triq l-Għenieq,Naxxar NXR3622, Malta

The Granting of Bail – A Privilege or a Right?

by Dr Renè Darmanin – Junior Associate

A common notion in criminal law which a lot of people have trouble comprehending is the granting of bail. It is often heard on the news that the accused was granted bail or in Maltese ‘inghata l-helsien mill-arrest’. In layman’s terms the granting of bail refers to those instances whereby persons awaiting trial are temporarily released from custody.

First and foremost when discussing bail, reference is to be made to article 5 of the European Convention of Human Rights which holds that everyone has the right to liberty. No one shall be deprived of his liberty unless one’s continuous detention is reasonably considered necessary to prevent the commission of another offence or to prevent the accused from fleeing whilst criminal proceedings are underway. As a matter of fact this same provision of the law entitles each and every accused to be released pending trial.

In light of these fundamental human rights, the European Court of Human Rights in a case decided on the 14th of September, 2009 in the names of ‘Polonskiy vs Russia’ reiterated that “the presumption is in favour of release.” Until a conviction, the accused must be presumed innocent. This essentially requires the provisional release once the accused’s continued detention ceases to be reasonable. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention.

When determining whether to grant bail or otherwise, our courts consider the nature and seriousness of the offence with which the accused is being charged, any previous convictions, as well any community ties which the accused may have. The court must also ascertain that the accused is reliable and shall appear in court when ordered to do so and that it is not likely that the accused will commit any offence whilst on bail.

If the court accedes to the accused’s request and grants bail to the person charged, our courts usually imposes several conditions which the accused must comply with. These conditions often include conditions which restrict the accused from leaving Malta or from approaching in any way any witnesses of the Prosecution. In certain cases, the court may also order the accused released on bail to sign at any District Police Station which the court may deem fit or orders the accused to retire at his home by not later than a specified time. The Court may also order the accused to deposit a stipulated sum of money.

Nonetheless, when the court decides to order the accused to make a deposit so that the granting of bail is guaranteed, the court must take into account the nature and quality of the offence as well as to the condition of the accused.

This amount of security was discussed in great detail in several landmark judgements such as that of ‘Richard Grech v. Avukat Generali’ decided by the Constitutional Court on the 28th of May, 2010 where the Court decided that

“meta tigi fissata l-garanzija pekunjarja, il-Qorti trid thares ukoll lejn il-mezzi finanzjarji tal-imputat u ta’ dawk il-persuni li jistghu joffru li jghinu lill-imputat, ghax altrimenti jigi daqs li kieku ma jkun inghata l-liberta’ provvizorja xejn.”

If the accused, whilst benefitting from bail, fails to comply with any of the conditions imposed by the Court, bail will be lost, a new warrant of arrest will be issued against him and the deposit as well as any guarantee shall be forfeited in favour of the Government of Malta.

However, whereas in certain cases the granting of bail is a discretionary power in the hands of the court, in other instances when the accused has not been released on bail and consequently is kept under arrest for a period of time which is determined in accordance with the offence with which that particular accused is charged with, bail becomes a right and it cannot be denied by the Court. This was the argument raised by the defence in the case of ‘The Police v. Zyad Mohamed Drebeka’ where the accused was initially charged with murder. In its decree granting bail, the Court of Magistrates held that in these particular situations the court was bound to grant bail once the maximum term of preventive arrest envisaged by law had run its course.

All in all, the institute of bail is a very controversial topic especially in situations where the accused are being charged with heinous crimes however one must keep in mind that the accused must always be presumed innocent until proven guilty. By the granting of bail our Courts attempt to strike a balance between the rights of the persons charged and those of society in general.

Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Rene Darmanin on rene@abalegal.eu.