After Eight Years In Prison, Daniel Holmes Prepares For Freedom - Even Though He's Been Waiting For An Outcome From The ECHR For Three Years

Daniel Holmes sentence finishes on Thursday, ending one of Malta's most controversial convictions - but the legal battle is still on

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Cover photo inset: Times of Malta

Daniel Holmes is set to be released from Maltese prison on Thursday - yet, three years after his lawyers brought his case before the European Court of Human Rights, he has yet to receive a response.

Unless the ECHR responds within the next three days, which seems highly unlikely, Holmes would have finished serving his entire sentence in Malta without ever getting a response from the most important judicial institution in Europe - and one that can prove that his case was mishandled by Maltese authorities.

It's been one year since Lovin Malta last spoke to Daniel Holmes - and his spirits do not seem to be keeping up as they once were

After eight years inside Corradino Correctional Facility, doing what he can to stay positive and steadfast in the hope that the allegations that he was a drug-lord kingpin would be proven false, Holmes has given up hope in the Maltese judicial system.

"I kept on waiting for a breakthrough, for someone to come in and shed some light on the situation, even until last year.... but I'm getting out next week. I've served my full sentence," Holmes said, sitting in the visitor's room in Malta's largest prison complex.

The incarceration of Daniel Holmes - who recently won a Gold Prize at the Koestler Awards in London for his poetry - ends on the 13th of September, when his sentence is set to end.

His lawyers - Dr Franco Debono, Dr Michela Spiteri and Dr Amadeus Cachia -took on Holmes' case in mid-2015, after he had been sentenced, and the criminal appeal had already been decided. They immediately took his case to the ECHR.

However, three years later, the case still hasn't been decided, and questions arise as to why the ECHR application filed by his new lawyers in 2015 has yet to receive an outcome in the form of a judgement.

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Pictured: Daniel Holmes
Photo: Times of Malta

Daniel Holmes' case was sent to the European Court of Human Rights in 2015

Three years on, however, and the ECHR has yet to give a response on how they will proceed with the case. When contacted by Lovin Malta, an ECHR representative said the Daniel Holmes' case is currently "pending".

"The case in question has not yet been decided and is currently pending before the Court. It is impossible to speculate about the timeframe within which the case will be decided," the ECHR said in regards to his case.

Generally, the ECHR takes years to review a case

However, questions have arisen by local legal experts as to whether three years to review a case by the ECHR qualifies as justice within a reasonable time frame.

Legal experts have also questioned whether Vincent Degaetano, a Maltese judge who currently works as a judge at the ECHR, is one of the judges of the judges presiding over this case.

Degaetano was Malta's attorney general and thus counsel to the government until the mid-00s.

During this time, most of the legal grievances of which Holmes is complaining about were already in force in Malta, such as the lack of legal assistance for arrested persons as well as the attorney general's absolute discretion in drug cases - a power of discretion that Degaetano could exercise.

It is not known whether this could give rise to any conflict of interest.

When Lovin Malta asked the ECHR as to the make up of the panel considering reviewing Holmes' case, they said: "We are afraid that we cannot provide details regarding judicial formations at this stage of the proceedings."

Holmes' lawyers believe his fundamental human rights under EU law were broken

Holmes was allegedly found growing around 30 cannabis plants, five of which were mature and budding. A court-appointed expert said Holmes had over 1kg of cannabis, of 4% THC purity. The court-appointed expert included the leaves in the weighing of the drug, and did not include the sticks and roots.

His lawyers have presented seven areas of human rights breaches that allegedly occurred to Holmes under the watch of the Maltese authorities.

Marzena And Daniel Holmes

Pictured: Daniel and Marzena Holmes

There are seven major grievances in Daniel Holmes' application to the European Court of Human Rights

1. He was not given the right to legal assistance during his interrogations

Laws violated: Article 6 of the European Convention of Human Rights and Article 39 of the Maltese Constitution

Malta introduced the right to legal assistance at a pre-trial stage in 2002, putting it into force in 2010. Daniel Holmes was arrested in 2006, and sentenced in 2011.

Daniel Holmes is recorded as having given three statements that were used against him in court. When giving these three statements, he was given no legal assistance.

2. Legal aid provided was inadequate

Laws violated: Article 39 (6c) of the European Constitution of Human Rights and Article 6 (3c) of Chapter 319 of the European Convention of Human Rights

When provided with legal assistance in the Gozitan court, he was assigned a legal aid with no specialisation in drug crimes, someone who could not give much more than lip service in Holmes' defence and did not make Holmes feel confident.

In addition, the fact that legal aid lawyers are paid by the Office of the Attorney General, who advised prosecution for Holmes, presents its own conflict of interest.

3. The Attorney General had unfettered discretion over the case

Laws violated: Article 39 of the Maltese Constitution and Articles 6 and 7 of the European Convention of Human Rights

The attorney general has the discretion to advise in which court Holmes' case would be heard, allowing him to decide which punishment bracket Holmes falls in.

He indicted Holmes to be seen in the Criminal Court, where the maximum punishment is imprisonment for life, as opposed to the Court of Magistrates, where the maximum punishment is not more than 10 years.

The ECHR has already ruled that such discretion is in breach of the European Convention of Fundamental Human Rights, as shown in the case of John Camilleri vs Malta.

4. The punishment inflicted to the accused was disproportionate

Laws violated: Articles 6, 7(1) and 14 of the European Convention of the Human Rights

Holmes was sentenced to ten years and six months in prison, even though he was involved in a non-violent offence, he cooperated fully with police, and other people who committed similar crimes received much lower punishments.

His lawyers have even provided a list of similar cases which were treated with much more leniency.

5. There was a legal misinterpretation of the word "cultivation"

Laws violated: Article 6 of the European Convention on Human Rights and Article 39 of the Constitution of Malta

At the time, the law made no distinction between cultivation for the purpose of trafficking and cultivation for the exclusive purpose of personal use.

6. There was an unreasonable delay of 3.5 years

Laws violated: Article 39 of the Maltese Constitution and Article 6 of the European Convention of Human Rights

Though he was arrested on the 21st of June, 2006, he wasn't officially indicted until the 18th of January, 2010, three and a half years later.

In this time, the attorney general repeatedly called a number of experts, including an architect to make a site plan of Holmes' property, all which added up to "unnecessary delays" from the side of Attorney General.

It is also ironic that while Holmes' is complaining of an unreasonable delay within the Maltese court he is experiencing a similar delay within the ECHR.

7. He was not given a full "fair and proper hearing"

Laws violated: Article 39 of the Maltese Constitution and Article 6 of the European Convention of Human Rights

The appeals stage was considered inadequate since it only consists of an review. Holmes complained that the exercise carried out by the Maltese court of appeal is very limited and should be extended.

What do you think of the case of Daniel Holmes?

READ NEXT: EXCLUSIVE: Daniel Holmes, Father Locked Up For A Decade Over Five Cannabis Plants, To Release Tell-All Book


Written By

Johnathan Cilia

Johnathan is interested in the weird, dark, and wonderful contradictions our late-capitalist society forces upon us. He also likes music and food. Contact him at [email protected]