Blanket freezing order in drug case does not breach right to fair hearing: court

A court has ruled that a blanket freezing order issued in a drug trafficking case does not breach the accused's right to a fair hearing and his right to property.

Doctor Andrew Agius was arraigned on March 10, 2022 and charged with importing, selling and the aggravated possession of cannabis grass. He denies the charges. 

In September 2024, the doctor and owner of the Pain Clinic, filed a constitutional application before the First Hall of the Civil Court in its constitutional jurisdiction claiming that his right to a fair hearing and right to property as enshrined in the Constitution and in the European Convention of Human Rights were being breached after the a freezing order was issued against him in the criminal proceedings. 

The case was filed against the State Advocate and the Attorney General. 

During his arraignment, the court denied the prosecution’s request and issued a temporary freezing order instead. However, a freezing order was issued by the Criminal Court in May 2022.

Under the Dangerous Drugs Ordinance, when a person is charged with selling or dealing in a drug or conspiracy, or aggravated possession of the drug, the court shall issue a freezing order at the request of the prosecution.

The freezing order covers all money, movable property due or owned by the accused, and prohibits the accused from transferring or disposing of any movable or immovable property. 

In November 2022, he requested the court to limit the freezing order, however, the Court of Magistrates denied the request, saying it was not empowered to do so.

The law allows for variation, and held that even if it had to limit the amount, this would amount to a revocation, and it was not empowered at law to do so.

Amendments were introduced in 2024, which, among other things, require the prosecution of declaring the amount to be hit by a freezing order within 90 days. 

These amendments do not affect the situation of when a person is charged under the Dangerous Drugs Ordinance. 

The court held that the right to protection from deprivation of property without compensation did not apply in this case, with the court noting that a freezing order was a precautionary measure and did not constitute the compulsory taking of property without compensation.

Moreover, the relevant provision in the constitution was not applicable since such protection cannot be invoked when it is related to taxes or dues or as a consequence or breach of the law, either in civil or after conviction of a criminal offence. 

Analysing the case under Article 1 Protocol I of the Convention, the court observed that for an interference by the state to be compatible, it must be lawful, in the general interest and be proportionate.

Such interference must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. 

The court observed that the procedure being complained of was aimed at preventing individuals from enjoying the proceeds of crime.

It held that there was a legitimate justification for such orders, noting that the state has a wide discretion to legislate in connection with its fight against crime.

Such measures have to be lawful and need to serve a legitimate aim, as well as strike a balance between the property rights of an individual and the general interest, even if the person accused is facing serious charges.

The court held that the issuing of freezing orders under the Dangerous Drugs Ordinance and the Prevention of Money Laundering Act was lawful and had a legitimate aim.

It then analysed whether the order was proportionate. 

In drug trafficking cases, blanket freezing orders are issued according to the law. If a person is eventually found guilty, the court will order that all of his assets be confiscated in favour of the government. 

It observed that freezing orders are issued to control the use of property, and if guilt is established, there will be assets to confiscate.

The balance to be struck is that if the person is eventually found to be guilty, he does not benefit from the crime.

Agius' pleadings 'generic, superficial'

The court observed that in the past three years, since the freezing order was imposed, Agius had requested several variations and the requests were upheld. It held that Agius did not show how the freezing order did not strike a fair and proportionate balance with his rights. 

It noted that the pleadings of the plaintiff were “generic” and “superficial” after he failed to show how his fundamental rights had been breached and are being breached. 

The court observed that the plaintiff also failed to show what prejudice he allegedly suffered and how the current limit of €13,976.24 is depriving Agius and his family from leading a decent life. 

It also held that it was not enough to insert the records of the criminal case into the constitutional one as evidence, since from the records it emerged that he requested several variations which were upheld.

He was allowed to travel for work and for holiday purposes. 

Thus, it ruled that his right to property had not been breached. 

On the claim that his right to a fair trial was being breached, the court observed that the 2024 amendments do not apply to his situation. It held that the right to a fair trial cannot be used to create a new right. 

“The legislator had a precise aim to keep the two regimes separate,” the court said, noting that in drug-related offences it was much more difficult to quantify the proceeds of crime. 

The court dismissed the idea that the issuing of a freezing order impinges on the principle of the presumption of innocence, saying that they are two completely different issues. 

The court dismissed the complaint and ruled that Agius’ rights had not been breached by the freezing order.

Mr Justice Giovanni Grixti presided over the First Hall of the Civil Court.

Lawyers Giannella De Marco, Stephen Tonna Lowell and Kristina Rapa Manché assisted Agius.

Lawyer Julian Farrugia from the State Advocate's Office appeared on behalf of the defendants.