Echoes of a frame-up

On Tuesday 31 August, Sliema mayor Nikki Dimech was ‘arraigned with urgency’ before Magistrate Joseph Apap Bologna. The bill of indictment contained two specific charges: one, that in September 2009, Dimech had attempted to solicit a bribe from a public contractor, and; two, that on 22 August 2010 the same Dimech had “reviled, threatened or caused an offence” to a public official (Police Inspector Angelo Gafa’) by means of comments in an interview with MaltaToday.

Considering that the bribery charge is by far the more serious of the two (have a look at the excerpt from Dimech’s interview, reproduced on this page, to understand why), it was perhaps surprising that Police Inspector Gafa’ would cite the second charge, and not the first, to justify the ‘urgency’ with which Dimech was arraigned last Tuesday.

More surprising still, Gafa’ also cited the second charge as a pretext to have Dimech remanded in custody without bail; and also to get the court to issue a general interdiction according to Article 119 of Chapter 9 of the Laws of Malta.

Inflated charge

Judging by the severity of the sanctions demanded by the prosecution, one would be forgiven for assuming that Dimech had threatened to cut Gafa up into little pieces with a chainsaw.

In reality, however, all Dimech had done was concede an interview to this newspaper, in which he claimed to have been mistreated by the police (without even alluding to Gafa’ by name), and suggested possible collusion between the police and the Nationalist Party.

For this reason, Magistrate Apap Bologna’s reaction was considerably less surprising. He promptly turned down both requests, and instead set Dimech’s bail at a deposit of €1,000, and a personal guarantee of €5,000.

And while the court did eventually uphold the urgency of the arrest, the official reason was based only on the gravity of the first charge – bribery – and not the second, which was duly ignored by the court.

That’s about as much detail as the official media reports would allow themselves to go into. But people present in the courtroom went one step further – afterwards commenting that Magistrate Apap Bologna was visibly ‘impatient’ and even ‘annoyed’ by Gafa’s demands.

And not without good reason; for in the context of the bribery charge, the second accusation comes across as almost gratuitous – not unlike the routine addition of ‘unauthorized possession of a firearm’ to the bill of indictment, when the main crime is actually murder in the first degree.

And looking back at the sequence of events, this not the only anomaly to leap to the eye.

Delayed reaction

At a glance, the timing of Dimech’s arrest does not make any sense.

His ‘incriminating’ interview was after al published in MaltaToday on 22 August, and the events described therein had allegedly taken place during his first interrogation eleven days earlier.

Assuming Gafa’ really did feel ‘threatened’ by the contents of that interview – and the excerpts below strongly suggest that he had no reason to – why did he wait nine whole days to call in Dimech for questioning? Did anything happen in connection with that interview on or around August 31 that warranted a second interrogation and an ‘urgent’ arraignment? And if not… why the sudden hurry to get to court?

There is something else.  A glance at the Criminal Code will confirm that the crime alluded to in the second charge is defined only very loosely by Maltese law. The actual wording is: “(anyone who) reviles, or threatens, or causes offence to the person of someone entrusted by law with a public service, while he was carrying out or because he  carried out this service, or in order to frighten him or influence him in the execution of that service…”

One criminal lawyer who spoke to this newspaper explained that the law in question is sufficiently vague to be conceivably cited in practically any instance… but with am important proviso.

“Case law establishes that for criminal liability to ensue, the offence ought to be carried out ex officio durante: that is to say, that the public officer must have been threatened or abused either during or immediately after carrying out his duties.”

A lapse of nine days between when the alleged offence took place, and when the alleged perpetrator was prosecuted for it, can hardly be expected to qualify as ‘ex officio durante’. Nor does it justify the haste referred to above.

A couple of alternative possibilities immediately spring to mind. Perhaps Inspector Angelo Gafa’ suffers from a propensity towards delayed reaction – the emotional equivalent of poor reflexes, whereby the police inspector would take nine whole days to feel the effects of an insult or a threat that others would feel immediately. 

Or who knows? Perhaps the entire second charge was itself a contrivance, in order to justify the otherwise incomprehensible ‘urgency’ with which Nikki Dimech was arraigned on Tuesday 31 August – by a huge coincidence, just two days before an impeachment motion against Dimech was due to be debated by the Sliema local council.

Worrying precedent

On another level altogether, the second charge against Dimech is worrying on the basis of its future applicability.

In effect, the law cited by Gafa’ exists primarily to protect public officials from reprisals or threats – a serious purpose, at least when the law is interpreted according to its raison d’etre.

Gafa’s interpretation, however, appears to suggest that any criticism of police behaviour at all can make one liable to ‘urgent’ charges (albeit nine days late) for ‘threatening’ and ‘reviling’ a police officer.

Suddenly, a law that was originally intended to shield public officials from criminality, itself becomes an instrument to criminalise anyone who would accuse a public official of abuse. It has been turned into the very opposite of a Whistleblower’s Act: rather than protect the victims, the law is now being used against those who allege criminal behaviour on the part of others..

The implications are as ugly as they are serious: Dimech’s arrest has de facto created a situation whereby victims of police abuse would do well to think twice before coming forward with their complaints, for fear of facing the same sort of legal reprisal.

There is also a human rights issue at stake: for if one can be arrested and even denied bail for as much as publicly questioning the motives and conduct of the Malta Police Force, then we may as well consign the notion of Freedom of Expression (a human right enshrined in the Constitution) to the garbage heap of legal nonsensicality.

Freedom of the Press will follow directly: for if a newspaper cannot guarantee that a personal opinion, expressed in an interview, can be published without criminal repercussions, who in his right mind would want to disclose anything to the press? 

The overall effect is that the police – or indeed any institution or even individual holding public office – now have automatic carte-blanche to break the law at will… and then, to add insult to injury, they can also prosecute anyone who dares criticize them for it afterwards.

Back to 1986

And of course, there is also a historical paradox staring us all in the face.

Looking at the same scenario from a slightly different angle: if any suggestion of foul play on the part of the police can now be interpreted as an act of ‘threatening’ or ‘reviling’ a public officer, then by the same token, the former editor of ‘L-In-_____ Taghna’, should really have been prosecuted for his landmark front-page headline ‘Frame Up’ in 1987: in reference to the arrest and prosecution of Peter Paul Busuttil over the murder of Raymond Caruana the previous year.

For that matter, so should Opposition leader Eddie Fenech Adami, who later revealed that he himself had phoned the editor to suggest the headline (adding that he would “assume full responsibility”).

At a stretch, the police could have gone on to arrest every single person who sent a one-line letter to The Times in the months that followed, to the effect that “(They) believe Peter Paul Busuttil (was) innocent.”

The logic is inescapable: if Nikki Dimech’s present claim to have been ‘framed’ can be interpreted as a ‘threat’ to the police officer who allegedly framed him, then all those letters and statements to the effect that Peter Paul Busuttil had been ‘framed’ by the police in 1987 should theoretically have been subject to the same interpretation.

The funny thing, of course, is none of this actually took place in ‘the bad old days’ of 1987. Instead it is happening now, 23 years later, and under the tenure of government of the same Nationalist Party that had once – long, long ago – fought so hard against precisely the same form of injustice.

Feeling threatened?

An excerpt from Saviour Balzan’s interview with Nikki Dimech, which Inspector Angelo Gafa’ (not mentioned by name) felt was ‘insulting’ and/or ‘threatening’ towards him:

Dimech claims the police inspector told him to consider his political career “already over” and “perhaps salvage my professional business.”

He also says he was told that if he didn’t admit to Buhagiar’s allegation, “otherwise he would make a show of me to the press. I kept on telling him that Buhagiar’s statement was not true but he would not accept this. This mental torture continued until 12.58pm.”

At this point, Dimech says a police sergeant entered the room while the interrogating officer started typing a statement. “While I kept repeating what I said was the truth, I felt the interrogating officer getting very angry. By 1:55pm, he finished the statement and instructed the police officers to lock me up in the basement prison cells.”

At this stage, Dimech says he was growing very anxious and started having trouble breathing. “I was wheezing and got a severe panic attack. I asked for my ventolin (inhaler) and two tranquilizers, so that I can breath properly as I suffer from chronic asthma and breathing panic attacks.”

Dimech says the police called the doctor to confirm his condition and get him medication. “My medication did not arrive. I spent over two hours experiencing acute asthma and panic attacks on my own in a cell.”