Lost in translation: why foreign inmates are often trapped in legal limbo

An abortive hunger strike at Corradino prison, in protest against unreasonable delays in an ongoing criminal appeal case, has cast a spotlight on a situation whereby foreign inmates are often left to languish in prison with no idea of their individual rights, or even of the precise details of their own cases.

Jose Edgar Pena - a Canadian national of Mexican extraction, currently serving an 18-year sentence for conspiracy to drug trafficking - started refusing food in his cell in Division 11 on Wednesday 12 September... soon after learning that the date for his appeal hearing had been deferred for the fifth consecutive time, without any explanation provided by the court.

It transpired that Pena had earlier spent four years awaiting trial in preventative custody.  Arrested in August 2006, his case would be heard and decided in 2010: when he was convicted by six votes to three in a trial by jury. The interim period was spent behind bars, in clear breach of an article of law (Chapter 9, Section 575 of the Criminal Code) stating that bail should be automatically awarded after 20 months' incarceration, in cases where the maximum penalty is more than nine years.

But while his rights were clearly infringed (having been incarcerated than the double the maximum time permitted by law) it appears that there is no immediate legal redress available.

In response to a questions by this newspaper, a spokesperson for the law courts gave a detailed breakdown of the deferrals in question: "The appeal case of Mr Pena was heard on 12 July 2011, and had been deferred for judgment 'in difetto ostacolo' for 15 September 2011," Dr Kevin Mahoney, director of law-courts, explained.

"From that date, the case was deferred for judgment for 27 October 2011, 12 January 2012, 23 April 2012 and 16 May 2012.  Judgment is due to be delivered on the 15 November 2012. It is pertinent to point out however that during these deferments, the Court was waiting for the outcome of an application made by Mr. Pena to obtain his release from arrest, which claim was eventually turned down on 11 April, 2012."

Considering that Pena was convicted two years before his request for bail was turned down on 11 April this year - even though bail is only associated with pre-trial detention, and not once a conviction has been handed down - the sequence of events suggest that there were extended delays also in legal proceedings regarding the bail request.

This, in turn, suggests that Pena was a victim of multiple shortcomings in the legal system: but Mahoney also explained that the law-courts have no jurisdiction to take any action with regard to these infringements.

Ironically, the only people who can take action are the same people who originally objected to Pena's bail in the first place: i.e., the prosecuting officers.

"It is not the role of the Courts to investigate out of its own steam any alleged irregularities as indicated in your email," Mahoney added. "It is the Prosecutions Office which is entrusted with this task and arraigns before the Courts any person who might have breached the rights of any individual.  The Courts hand down judgment upon those brought forward by the prosecutor..."

Apart from the apparent conflict of roles at the heart of this anomaly - in this case, the Office of the Prosecution would have to investigate itself, for engineering a case of de facto illegal detention - fingers have also been pointed at the quality of legal advice made available to persons in similar predicaments.

In the main, these are foreign inmates who often have no option but to rely on lawyers provided for free by the law-courts.

At present there are 89 out of 216 foreign inmates held in detention at Corradino while awaiting commencement of their trial. Many of these are understood to be availing of free legal aid: but it is debatable in the extreme whether they are also benefiting from any actual service as a result.

George Busuttil, of the prisoners' rights NGO 'Mid-Dlam Ghad-Dawl' (MDD), argues that lawyers enlisted through the legal aid programme tend to be more absent than present when it comes to assisting their clients in court.

"I know of one case where a defendant - a foreigner - had his case deferred 23 times, because his lawyer simply never showed for the trial," he told MaltaToday. "In other cases, foreigners very often find themselves spending more time in prison than necessary, because their lawyers never filed a request for bail, or never even told them they were entitled to provisional liberty. In my experience, people on legal aid almost never get to see their lawyer at all. I also get the impression magistrates are often too tolerant of this situation: deferring cases over and over again, without questioning why these people are being constantly abandoned by their lawyers..."

MDD, Busuttil added, is in the process of drawing up recommendations to both parties for a reform of the system ahead of the next election.

"One of our proposals is to oblige lawyers on the legal aid system to provide an account of their services." 

On another level Malta's legal landscape also contains what appears to be an inbuilt penchant for discriminating against foreigners in general. Not only does the office of prosecution object to bail more frequently in cases involving foreign suspects (the traditional pretext being that foreigners, by definition, are likelier to abscond) but for reasons which remain unclear, foreign suspects are very often required to pay a deposit for bail to be granted... while their Maltese counterparts are often granted bail against only a personal guarantee.

As Busuttil points out, the issue is not so much that thre law-courts refuse to grant bail... but that the bail deposit is often fixed at astronomical sums which are beyond the means of inmates who can't even afford a private lawyer (seeing as most would be on legal aid).

"If the court grants bail, but sets the deposit at €20,000... how are these people supposed to come up with that kind of money? They may as well not be granted bail at all."