The institute of bail (il-benefiċċju tal-ħelsien mill-arrest) is a form of undertaking whereby a person awaiting trial is temporarily realeased from custody. It relies on the presumption of innocence which our Criminal Code bestows on a suspect or accused. This presumption emanates from the European Convention on Human Rights (hereinafter “ECHR”) and the Constitution of Malta.

Nonetheless, it is not an absolute right and hence, can be restricted. Such limitation is the lawful arrest or detention of a person based on a reasonable suspicion of having committed the offence.

In Edwin Bartolo u Alfred Desira vs Agent Registratur tal-Qrati nomine’ it was stated that “Bħala prinċipju l-liberta’ tal-persuna hija r-regola, u l-arrest għandu jitqies bħala l-eċċezzjoni[1].”[2]

Hence, when a person is in custody, by virtue of the right to their personal liberty, the institute of bail is available to grant provisional personal liberty until the Court makes its final determination. Given that an arrest is the exception to the rule, the prosecution shall justify why the applicant should not be granted bail.

Bail can be applied for at any stage of proceedings. When a person charged or accused is brought before the Court of Magistrates, after hearing the prosecuting or arraigning police officer and his evidence produced, a verbal request for bail may be made. In all other instances requesting bail, a court application is required. Once a court application for bail is filed the Attorney General (hereinafter “AG”) may within the next working day, by virtue of a note, oppose the application by stating the reasons owing to the said opposition.

When the Court decides on whether to grant bail or otherwise, it considers the circumstances of the person and whether the person is likely to not appear for his proceedings. Tangible connections to Malta need to be determined in order to convince the Court that the applicant is not a danger to abscond. In ‘Jovica Kolakovic vs Avukat Generali’, it was attested that staying in a hotel or even habitually residing in Malta as a sole reason, is not a sufficient guarantee to convince the Courts that the applicant will not abscond. Together with the evidence produced by the applicant, the Court will also consider factors such as: (i) whether the applicant is a first-time offender or a recidivist; (ii) the nature of the offence; (iii) whether he was ever granted bail and whether he committed an offence during such bail; etc.

Crimes against the safety of the government and crimes liable to the punishment of life imprisonment require a stricter degree of consideration for bail ex lege.

If the Court decides to grant bail, it will impose bail conditions upon the accused, who will have to abide by throughout the bail. Examples of such conditions may include: (i) signing at a police station every day or every week, as the court deems fit; (ii) imposing a curfew; (iii) financial deposit and more.

Criminal proceedings cannot move forward when the accused is in absentia, therefore, imposing a condition wherein the accused must be present for proceedings is common. The conditions of bail can also be varied by virtue of a court application stating a justifiable reason for variation.

There are different forms of securities for bail which include a mere deposit, a personal guarantee, or a recognisance by a third party of the applicant.

The Courts may also impose multiple sureties.

For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella

[1] English: ‘As a principle a person’s freedom is the rule, and the arrest should be considered as the exception’

[2] ‘Edwin Bartolo u Alfred Desira vs Agent Registratur tal-Qrati in rappresentanza tal-Qorti Kriminali tal-Magistrati Ta’ Malta, Presjeduta Mill-Magistrat Dr. Joseph Apap Bologna; u l-Kummissarju tal-Pulizija’, First Hall of the Civil Court, 1989.

Disclaimer This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.
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