He occupies the role of the land’s chief prosecutor for the State, but Attorney General Silvio Camilleri finds himself willing to take on an array of subjects which, from juvenile delinquents to drugs, seem to fall within his remit as the head of the Republic’s prosecution office.
At first glance, the diminutive Camilleri sounds less blustering than when I had witnessed him in action during the Meinrad Calleja case, bellowing at witnesses like Zeppi l-Hafi into providing clear cut answers to the court. As the chief prosecutor of the state, Camilleri still presents a sober approach on the quest for justice – whether it concerns the varying degrees of punishment for drug offenders, or avoiding the pitfalls of paedophile registers, which when we talk about, warns against taking recourse to such witch-hunting measures; although he is momentarily solemn when touching upon the subject of abortion.
In the latest of events catching the attention of the press from inside the courts, is the case of a 13-year-old girl recently sentenced to seven days’ detention in Corradino prison – from where she was transferred to Mount Carmel Hospital, after it turned out there were no facilities for females under 16; although Camilleri is ready to argue to the contrary.
Despite not concerning his office, Camilleri says he did take an interest personally in the case which goes back to March of last year, when three girls aged between 13 and 14 were prosecuted for their part in a fight with another group of similarly aged girls in Valletta. All three were found guilty by Magistrate Antonio Vella of verbal abuse, and one of causing slight injury to one of the other girls, apparently by pulling her hair. They were sentenced to seven days’ detention, but while two of the girls filed an appeal against their sentence, the third did not. The youngest of the three offenders, she became the first female offender of her age to be incarcerated at Corradino prisons.
“Although our office had nothing to do with it, I took an interest in the case to verify what happened. The juvenile court imposes restrictions on identifying the young people being arraigned. In this case, three minors were arraigned for assault; the girl in question did not appear for the first sitting, while her peers were given a sentence of imprisonment by the Court, but which at that point could not sentence the other girl, simply because she was absent for that sitting.
“I’m not informed as to whether the police prosecution actually demanded that the girl be given a prison sentence, but it is likely that the Court had to be consistent in sentencing this girl the same way as the others.”
Camilleri says he is not aware of the gravity of the offence, otherwise described in the press as an everyday teenage squabble that turned bad; although the far reaching consequences have been those of exposing the criminal justice system’s inability to apply alternative modes of corrective measures for young offenders, who as in the case of the 13-year-old, had a clean record. “To me the most unfortunate aspect of this episode is that this girl did not appeal, while the other girls appealed… What I can say is that I am not happy she was sent to prison, or to Mt Carmel. In the latter case, it concerns her mental health. However, she was not sent there under the premise that there was no place for her at Corradino, as the perception seems to be. Because there is place for them. The Young Offenders Unit happens to be limited to males, which is very unfortunate. However, there were cells which are not part of this unit, but apportioned away from the adult section. Still, there were reasons, having nothing to do with the lack of cells for juvenile girls, for her being transferred to Mt Carmel.”
What had really elicited controversy from the AG’s office had been a decision to discharge a St Luke’s doctor from criminal proceedings brought against him over the death of the young Andrea Massa, the seven-year old child from Naxxar who died in St Luke’s Hospital on 28 February 2001 after an appendicitis operation. In February 2003, former Attorney General Anthony Borg Barthet stopped criminal proceedings against Dr Christopher Fearne, through the unique right of nolle prosequi. Previously, Magistrate Consuelo Scerri Herrera had already concluded there was sufficient evidence to initiate legal proceedings against the consultant. The criminal case stopped there, discharging Fearne.
Borg Barthet would later state during the Radju Malta programme “Mhux Kelma Bejn Tnejn”, broadcast in February 2004, that his decision had been dictated by his conscience: “This is all that I can say. Now whether I was mistaken or otherwise, may God forgive me”.
But nolle prosequi, the prosecutor’s application to discontinue criminal charges before trial, or up until, but before verdict, was to become a feared right of the AG that, as in the case of the Massa family, spelt the end to a quest for justice on the death of their son. “The Massa case was certainly not the only one where the nolle prosequi was applied,” Camilleri says. “Nolle prosequi is the power of the Attorney General to stop court proceedings. It is not, as you say, arbitrary: it is certainly a power in his exclusive competence, but it doesn’t mean it is arbitrary, because the AG gives its motivations and a report to the President explaining the reasons why it declares a nolle prosequi. But the president is the only person to whom the AG is legally obliged to report about such a procedure.”
To the average person, this is likely to sound like a separate way of passing judgement – although there is no judgement actually being passed.
“No, it is not a separate way of passing judgement. True, there is no review. But it cannot be taken in that sense.”
In the Massa case, the AG based his decision on an internal hospital report on the inquiry St Luke’s held into the incident, and which the Massa family has never had access to. Surely, this was a case in which justice was not only prevented to take place normally, but even prevented the interested parties from knowing why this decision to stop criminal proceedings was even taken.
“Certainly not just on this report. He would have taken the result of the compilation of proof. I cannot get into the details of the case. I am also under the impression that the report, with parts of it edited out, had been presented on the table of the house of parliament.”
But justice cannot be said to have been done in any case – certainly not for the Massa family.
“He (the doctor) was subjected to proper criminal procedures, and the appropriate decisions were taken by the appropriate authorities who had the competence to take them… and you may agree or disagree, as you may do likewise with any court decisions,” Camilleri says, whose opinion at this point does little to change the facts of the matter. Re-opening the case would mean that new evidence must be presented.
“Certainly, I am in no position to say whether this decision was a mistake or not – I am not here to pass judgement on what my predecessor did. I have no doubt he made this decision to the best of his ability, based on the evidence before him, and true to his conscience… we’re also open to scrutiny and criticism, and if people disagree they are free to do so.”
He does however have a clear opinion on the ban on the publication of names by the Courts, in the most recent case afforded to a notorious singer brought to court over accusations of fraud; but also in other cases such as the Carousel fraud investigation, a four-year investigation whose four defendants were afforded the luxury of a ban on the publication of their names. Despite being well known, white collar criminals often tend to enjoy this protection by the Courts on the premise that it safeguards any future business deals they might otherwise be part of.
“Let me speak in general of this practice in which, several times, the names of the defendants are ordered by the courts not to be published. If you ask the lawyers of the defendants, they will obviously tell you it is a justified measure. Myself, I do believe there are certain cases where the names of the defendants should be banned from publication – in rare cases, for example where the father may be accused of raping his daughter, and where publication of his name would lead to the identification of the child.
“However, I don’t think the ban on publication should be used with ease. Let me put it this way – for I don’t want to be a judge of judges. If I were a judge, I would not prohibit the publication of the name, because it is in the interest of the accused himself that the procedures are made public. And it is not just the interest of the defendant that counts here, but also that of the community, not just to see that justice is being done, but to be on the alert and be prudent in dealings with a person who is accused of, say, fraud.”
Being a case of two weights and two measures, where the Courts are often less clement with drug offenders, does he think that white collar crime is treated more leniently in this aspect?
“I think it is just a perception. I’m not excluding it, but I cannot comment on that aspect without some statistics. I’m not sure it is the case however. Maybe they are the cases which seem to cause a greater commotion.”
Camilleri however prefers not to delve into the subject of abortion, briefly cutting his words short when I ask him of his opinion on an interpretation given by his predecessor that a Maltese woman who commits abortion abroad could be liable for prosecution in Malta. It’s the case scenario implied in the eventuality that women might take recourse to services such as those offered by Dutch abortion doctor Rebecca Gomperts, having an abortion carried out on the high seas, and later facing prosecution in Malta.
“Look… I have thought about this subject, and I don’t wish to comment. It’s not because you bring up the interpretation of my predecessor. I have both professional and personal reasons not to give my opinion on this subject,” Camilleri says, bringing this part of the discussion almost to an end – although he does comment on the debatable premise of preventing women from leaving Malta on the suspicion of having the intent to commit an abortion.
“There have been cases in which pregnant women were stopped from departing. I don’t exclude that a father can file civil proceedings to prevent a woman, whom he believes is carrying his child, from leaving the island to commit an abortion. Whether it is awarded by the court or not, is up to the judge.”
But wouldn’t preventing a woman from actually leaving the island, on the mere suspicion that her pregnancy might be terminated, be a breach of her right to free movement?
“Maybe, but remember that there are few fundamental rights which are absolute – they are of course qualified. In this case, a person who has an interest in the continuation of the life of an unborn child, will have to base their contention on proving that the mother is leaving the island to terminate the life of the unborn child. The principle of course is that whoever alleges, has to prove the allegation: the father would have to prove the woman intends terminating the life of the child.”
He offers a sober reflection on the so called war on drugs, a title that has lost its allure since more apocalyptic concerns, namely terrorism, came to the fore. His office is responsible for the successful prosecution of drug traffickers, whose arraignment ultimately depends on the work of the police force.
“There are successes and failures. Saying that the battle would be won upon eliminating all drug trafficking would be living in the clouds, certainly we would not be realistic. Even in the Netherlands, where drugs are legalised, the illegal traffic of drugs is still prosecuted, because it still takes place. I don’t know what sort of study would be needed to make an objective assessment of whether the war on drugs is being won. At times, we have greater success in catching traffickers, where it leads to a greater restriction of the drug supply and consequently higher prices.
“My personal opinion, although I’m not the one who lays down the policy, is that I’m not convinced of the need of reclassification or categorisation. The law as it stands already offers varying margins of punishment to take into consideration the varying degrees of the drugs quantities and the conditions in which it was seized.
“Today we have the possibility of coming to an agreed sentence with the defence, which we would present to the Court to consider if it agrees with the sentence. But in general we make a difference as to the volume of the drug, whether it is cannabis resin or the plant, cocaine, crack.”
But don’t the minor cases of prosecution for personal use only contribute to an increased caseload, and more police resources being exhausted on minor cases and small amounts? Camilleri seems to concede that the differentiation between drug sharing and importation had to be done, namely the waiving of the mandatory six-month imprisonment term for those accused of sharing drugs.
“There was a time when the six-month imprisonment was the minimum term for sharing, since this was considered to be trafficking. The Giselle Feuz case opened the floodgates of controversy, admittedly because she was Swiss, because the cases involving the Maltese never seem to cause such clamour,” Camilleri says, hinting at the stormy uproar that ensued when the foreign national fell foul of Maltese law with a minor amount of cannabis. “Eventually the law was amended, no longer making imprisonment compulsory when it is importation for personal use.
“What worries me is not categorisation, but the possession of drugs in small quantities which may belong to a far greater part. You don’t find the big traffickers carrying anything on them, or at home, because their real stock is hidden somewhere else, say in a field. I have no doubt about it. They take small amounts needed for that day of business, but the kilos are hidden in some garage, or an abandoned room. So I would be very cautious of being lenient on the trafficking of small quantities. They are free to destroy their own lives, but not to traffic it and destroy other peoples’ lives, not even if they are trying to fund their own addiction.”