The traditional zero tolerance approach towards illicit substance abuse was curtailed back in 2015, where drug legislation in Malta was boldly revamped with the primary objective to provide a rehabilitation centred approach to the problem of drug use.
This shift in mentality, reflected in the amendments introduced by Act I of 2015, led to the creation of a new judicial structure comprised of a Commissioner for Justice, Drug Offenders’ Rehabilitation Board as well as a Drug Court to help deal with drug-dependent persons, who were traditionally frowned upon in a similar manner to drug traffickers.
The famous article 8 of Act I of 2015, namely the Drug Dependence (Treatment not Imprisonment) Act, Chapter 537 of the Laws of Malta, introduced the highly sought-after legal mechanism whereby courts of criminal jurisdiction may assume the functions of a Drug Court and proceed to refer the accused before the Drug Offender Rehabilitation Board after being satisfied that the conditions stipulated under article 8 of Chapter 537 are fulfilled.
If the case is directly related to the trafficking or possession of illicit drugs per se, the functions of a Drug Court may be assumed by a court of criminal jurisdiction in cases where the quantity of the drug does not exceed three hundred grams of cannabis or one hundred grams of heroin or cocaine.
Where on the other hand, the offence in question is not specifically a drug-related offence, the Court may assume the functions of a Drug Court only if the individual concerned is “charged with the commission of any crime not liable to a punishment of more than seven years imprisonment”.
In any case, the conversion to a Drug Court is subject to two central conditions, contemplated in article 8(2) of Chapter 537 of the Laws of Malta, namely that the offence committed was substantially attributable to the proved drug dependence of the accused and that there exist objective reasons which indicate that the accused is likely to be rehabilitated from drug dependence or that he has made substantial progress or effort to free himself from drug dependence.
While the importance of the legal tool introduced via article 8 of Chapter 537 is undisputed, it is evident that there are a number of questions which remain unanswered either due to uncertainty with respect to the application of a particular provision or due to lacunae which were not addressed during the enactment of the Chapter 537.
The judgment delivered on the 28th of June by the First Hall of the Civil Court in its Constitutional Jurisdiction in the names ‘Reuben Micallef v. The State Advocate’ precisely centred on this element of uncertainty where a provision under article 8 of Chapter 537 was found to be in breach of the applicant’s fundamental rights, who was sentenced by the Court of Magistrates as Court of Criminal Judicature to a five-year effective imprisonment term for fraud he committed to sustain his acute drug addiction.
The accused appealed his conviction and since the punishment meted by the Court of First Instance for the non-drug related crime committed did not exceed seven years imprisonment, the appellant proceeded to request the Court of Criminal Appeal to assume the functions of a Drug Court in terms of article 8 of Chapter 537.
The Attorney General objected, and in its decree the Court of Criminal Appeal held that while the appellant was indeed only sentenced to a jail term of five years, the crime he is accused of committing is liable to the punishment exceeding seven years imprisonment. Since article 8(1) of Chapter 537 is concerned only with the maximum possible punishment attributable to the offence and not with the actual punishment meted out following a conviction, the Court of Appeal turned down appellant’s request for it to convert itself into a Drug Court.
Faced with this decision, Micallef instituted constitutional proceedings before the First Hall of the Civil Court in its Constitutional Jurisdiction, claiming that this provision under article 8 of Chapter 537 discriminated between those accused of committing a crime which carries a maximum punishment of less than seven-year imprisonment and others accused of committing a crime liable to a maximum punishment which exceeds seven years imprisonment but who ultimately got less than seven years following sentencing.
Before the First Hall of the Civil Court, the applicant also argued that although the punishment could indeed exceed seven years, the term meted out was that of five years and since the Attorney General did not lodge an appeal, there was no chance that his punishment would be increased, arguing therefore that it was the actual sentence which has to be taken into account when deciding on a Drug Court conversion request and not the potential maximum.
In its considerations, the Civil Court First Hall in its Constitutional Jurisdiction held that that this specific provision under article 8 of Chapter 537 contradicts the fundamental principle of presumption of innocence in that it imposes on the Court, in its deliberation as to whether to convert itself to a Drug Court, the obligation to treat the accused as if he was guilty of all the charges against him and also assume that the maximum punishment would be inflicted.
The Civil Court First Hall moreover highlighted the fact that the law, as it stands, also clearly distinguishes between persons charged with offences punishable by imprisonment for up to seven years and persons who, although charged with offences which exceed the seven-year threshold, are eventually handed a lesser punishment, nonetheless being denied access to a Drug Court.
The court ruled that it was clear that the only reason for this distinction was that for the purposes of Chapter 537, the accused was being treated as guilty, despite the fact that no sentence had yet been imposed. Even worse, was the fact that this could even happen after the accused was cleared of some of the charges.
The Civil Court First Hall in its Constitutional Jurisdiction thus declared that this specific provision under article 8 of Chapter 537 is in violation of the fundamental right to a fair hearing, specifically the principle of presumption of innocence.
In awarding an effective remedy, the Court ordered the Court of Criminal Appeal, after ensuring that the conditions mentioned under article 8 of Chapter 537 are fulfilled, to assume the functions of a Drug Court. Should said court deem that the current wording of the law precluded it from doing so, the criminal proceedings were to be postponed sine die (indefinitely) until the law was fine-tuned to grant the applicant access to the Drug Court.
Moreover, the Civil Court First Hall in its Constitutional Jurisdiction ordered that once the judgment becomes final, a copy was to be served upon the Speaker and the Justice Minister.
This judgment was appealed by the State Advocate and proceedings are currently pending before the Constitutional Court.