Lawyers question constitutionality of automatic bail bond confiscation

A Spanish man and woman who were facing the confiscation of their bail guarantees have been given the right to contest the confiscation before the constitutional courts.

Maria Patrica De Las Heras and Christoph Jorge Valdiva Docio had been arrested together with four other Spanish citizens after they were found drinking in a bar in Spinola on a Friday night at a time when this was prohibited due to the COVID-19 pandemic.

A commotion had erupted as police were taking down the details of the bar’s six patrons, who were later charged after reacting with aggression, allegedly pushing a police sergeant and damaging a police car and its radio.

Three of them had admitted to the charges, whilst the others, including De Las Heras and Valdivia Docio had pleaded not guilty.

The pair had been granted bail against a €5,000 personal guarantee each and under several conditions, including a curfew.

But four months later, the couple found themselves in trouble with the law again, after being found outside after their curfew hours. They had pleaded guilty and their lawyers, Franco Debono and Amadeus Cachia, had requested a presentencing report be drawn up.

In the meantime, the lawyers had also requested a constitutional reference to the First Hall of the Civil Court in its constitutional jurisdiction.

In it the lawyers argued that the 2015 amendments to the Criminal Code had introduced a general disposition that removed the courts’ discretion on the seizure of bail guarantees when a person is found guilty of breaching bail.

This tied the courts’ hands, even in minor breaches, submitted the lawyers, arguing that this could lead to “arbitrary and disproportionate punishment.”

Just last week, the two lawyers had made similar arguments before the Criminal Courts in a separate case in which a man on bail for murder faced losing his €31,000 bail bond. In that sitting a lawyer from the Office of the Attorney General had drawn the attention of the court to the fact that whilst the proceedings were underway, a draft bill had been presented in parliament aimed at widening judicial discretion in cases of confiscation of bail bonds.

In the case against the two Spanish citizens, Magistrate Josette Demicoli upheld the request for a constitutional reference, declaring it “not frivolous, nor vexatious.”

Once a breach of bail is proven, the confiscation of the bail bond was obligatory as was re-arrest, together with the possibility of prison or a fine, observed the court.

However, it was not up to her court to decide as to whether the law gave rise to the possibility of discrimination or abuse, or whether the accused’s fundamental rights had been prejudiced, she said, referring the case to the First Hall of the Civil Court in its Constitutional jurisdiction.

Inspector Leeroy Balzan Engerer is prosecuting. Lawyers Franco Debono and Amadeus Cachia are defence counsel.