It is trite knowledge that, no matter the nature of the crime, the fundamental human rights of the person charged must be safeguarded. The application of criminal law necessarily goes hand in glove with the respect of fundamental human rights.

Proportionality is the determining factor in the delicate balance between public interest on the one hand and the protection of human rights on the other. The lack of proportionality is one of the main causes for findings against member states of the Council of Europe by the European Court of Human Rights in Strasbourg.

Financial crime, despite the difficulties and complexities encountered by investigating bodies, and despite its often controversial nature, comes as no exception.

The Prevention of Money Laundering Act, which was brought into force in 1994, has been amended no less than 27 times, more often than not to bring it in line with Malta’s international obligations. Many times, amendments were introduced fastidiously but, on a couple of occasions, an overzealous legislator lost sight of the principle of proportionality.

Draconian interpretations of draconian laws are a recipe for disaster

Our courts have made it abundantly clear that court orders freezing one’s assets are not intended as a form of anticipated punishment but solely to avoid the dissipation of those assets that could be subject to confiscation in the case of an eventual finding of guilt.

The current situation in our procedural laws on financial crime does not reflect this cardinal principle. As things stand, one’s assets may be “attached”, without much scrutiny, for a whole year without charges being filed.

The situation when a person is charged is even more serious since, upon a simple and unqualified request by a prosecuting officer, all that person’s property is “frozen” without the possibility of scrutiny by the courts.

No investigation into the proportionality between the quantum of the proceeds of the crime alleged and the amount and nature of the property possessed by the person charged is made or can be made. All assets are frozen irrespective of whether they constitute the proceeds of crime or not.

There have been cases where the prosecution insisted on the issuing of a freezing order when it was evident that there were no proceeds of crime.

Our courts are the ultimate guardians of the safeguarding one’s fundamental human rights and, where more than one interpretation of a law is possible, the one safeguarding such rights should always take precedence. Draconian interpretations of draconian laws are a recipe for disaster.

Unfortunately, in recent times, many of our courts have strangely made a dead letter of a crystal-clear provision of law intended to allow the modification of freezing orders. This provision, which actually doesn’t allow for much interpretation, was previously interpreted correctly.

If a person is found guilty of a relevant offence, all his property is confiscated in favour of the State. The person found guilty would have to institute fresh civil proceedings to determine which property will be confiscated and which may be retained.

This cumbersome remedy is not one against the freezing order but against the order of confiscation. Currently no remedy exists whereby, in the course of the habitual lengthy proceedings before the courts of criminal jurisdiction, the person charged may request the court to remove from the ambit of the freezing order property that was, for example, legally inherited through a public deed and has no connection to the crimes brought against him.

The result is serious and unwarranted hardship including the closure of businesses and the cessation of professional activity even in the absence of any finding of guilt. This hardship necessarily extends to family members, co-owners of immovable property and employees who may face layoffs due to the lack of proportionality in the law.

Malta must respect its international obligations in the fight against financial crime but it must also respect the fundamental human rights of persons. The European Court of Human Rights has stated that where an interference with one’s property has taken place, subject to the conditions provided for by the law and in the public interest, there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Our courts have, on several occasions, sent warning signals to the authorities that all is not well with the current law in this field.

The bill currently before parliament to amend various laws relating to the proceeds of crime is a clear step in the right direction in that it safeguards all the tools for combatting financial crime while not losing sight of the fundamental principle of proportionality.

Stephen Tonna Lowell is a lawyer by profession.