A person confronted with 9 separate alimony circumstances suffered a rights violation, the courtroom says

A judge has called the practice of filing separate criminal cases over individual failure to pay child support an “abuse of the penal code.”

The judge said the practice violated the defendants’ fundamental rights.

This follows a decision delivered this morning by the First Hall of the Civil Court in its constitutional jurisdiction under a constitutional proposal tabled by Joseph Muscat (not the former Prime Minister).

Muscat had been charged in July 2021 for failing to pay child support to the mother of his children in April of that year. During the trial, it emerged that Muscat had previously been charged with the same crime in October, November and December 2020 and in January, February, March, May and June 2021.

In each case, Muscat was found guilty and sentenced to one month in prison, bringing his total time in prison for the nine individual offenses to nine months.

Muscat’s attorneys Arthur Azzopardi and Jacob Magri had appealed that ruling, arguing that the Court of Magistrates’ legal inability to deal with multiple cases of such violations in a single case detracted from his client’s right to a fair trial be.

In the appeal application, it was argued that the multiple identical payment defaults were a so-called “permanent offence”. The Maltese Criminal Code provides for cases where a person accused of multiple crimes committed with the same purpose and in breach of the same legal act may be held accountable for just one ‘continuous’ crime, with the penalty being increased will be by a degree or two, at the discretion of the court.

The defendants in the constitutional case, the prosecutor and the police commissioner, had rejected the argument that the system deprived a defendant of the right to equality of arms, arguing that the offenses must be prosecuted separately because of the six-month statutory time limit for prosecutors to file charges of non-payment of maintenance. They also argued that “the law is there to protect the victim… not the person who broke the law in the most blatant way.”

Judge Francesco Depasquale noted that all cases were filed under Section 338(z) of the Criminal Code, which criminalizes failure to pay child support or child support and makes repeat commission of the offenses punishable by imprisonment for up to two months .

The judge found that the factual circumstances of the case differed significantly from the account given to the court by the prosecutor, “presumably based on information provided to him by the police”. There have been at least two separate cases in which three of the charges could have been combined for prosecution, but had not done so without good reason.

“Contrary to the impression the police wished to convey from the prosecutor’s submissions, it should be noted that the police were free to bring charges for 3 separate months combined and had no reason to issue them separately, unless for very clear reasons Reasons the court will address shortly,” Depasquale said.

The judge quoted extensively from judgments of the Criminal Court of Appeals and publications by prominent legal scholars that highlighted the potential for abuse by prosecutors, who have discretionary powers to pursue separate charges or treat the multiple instances as a continuous offense.

However, the case files also showed that Muscat, while asking prosecutors to exercise this prerogative, refused, claiming that the reports were anecdotal and that the non-payment of child support was ongoing.

The result of this prosecution appeal, the judge said, was that Muscat faced a possible maximum sentence of 18 months in prison, and was actually jailed for nine months.

“The Court can only state here that the conduct of the prosecution, particularly in relation to the charges brought on the same day, can be considered abusive and aimed solely at causing the greatest possible harm to the accused, which certainly cannot be found You support in this court.”

The intent behind the decision to separate charges, the judge said, “was clearly to twist the defendant’s arms … with the sole purpose of threatening the defendant with a harsh sentence in order to get him to pay the child support due.”

Depasquale explained that this train of thought was also reflected in the prosecutor’s submissions, which insisted that, based on the practice followed by the Criminal Court of Appeal that the defendant had paid the alimony due, the penalty should be imposed and there had been no breach in a conditional release. “The Court notes here that this practice has been adopted by the courts only in the face of repeated abuses by prosecutors in similar or identical cases, in which they have resisted a combination of charges, forcing the courts to pass the sentence in one seek to remedy the situation,” the judge stated.

“The Court therefore considers that the prosecution knowingly and with clear intention abused its exclusive prerogative as to whether or not to include several crimes in the same indictment, which would certainly not be the case if it had the prerogative of Article 595 of the Criminal Code the penal code would be applicable not only at the request of the Attorney General or the police, but also by the court itself, “ex officio” when deemed appropriate.”

That power, currently exercised exclusively by prosecutors, prevented the court from administering justice, the judge said. The situation could easily be remedied by amending Article 595 of the Criminal Code to include the possibility for the court to group similar charges of its own accord.

The judge upheld the constitutional reference and ruled that Muscat’s right to a fair trial was violated by this exclusive prerogative, creating an inequality of arms and resulting in his being sentenced to a more severe sentence than what would otherwise be applicable.

The court ordered the similar charges against Muscat to be treated as a continuing criminal offence.

The judge ordered that a formal copy of this ruling also be sent to the Speaker of the House of Representatives and the Attorney General.