A law which limits access to the Drugs Court for certain cases was on Thursday found to breach the fundamental rights of a lawyer who landed a five-year jail term for fraud he committed to sustain his acute drug addiction.

The landmark judgment was delivered in constitutional proceedings filed by Reuben Micallef, whose life took a downward turn when he began to dabble in drugs following a broken relationship.

The applicant had recounted the story of his life in court, explaining how he got his first taste of drugs when he caught up with former University friends after his relationship failure.

From that moment on, his life got progressively worse as his addiction took over his life.

When at his most vulnerable, he was exploited by two persons into committing the fraud to get money to buy his daily supply of drugs.

“Drugs were my sole purpose in life and without them I felt unwell,” Micallef testified.

He was subsequently charged and convicted for having defrauded various persons in 2007 and condemned to a five-year jail term.

He filed an appeal.

With proceedings still pending at appeal stage, Micallef’s lawyers requested that court to convert itself into a Drugs Court in terms of the Drug Dependence (Treatment not Imprisonment) Act.

But the Attorney General objected and the Court of Criminal Appeal turned down the request, stating that that law applied only where the offence was liable to a punishment which did not exceed a seven-year jail term.

That was not the case in respect of Micallef even though he was eventually condemned to a five-year term.

The law spoke clearly and left no room for interpretation, the appeals court said, nonetheless directing that a copy of its decision was to be notified to the Justice Minister.

Discriminatory law

Faced with that decision, Micallef’s lawyers took his grievance before the First Hall, Civil Court in its constitutional jurisdiction, claiming that the law discriminated between those who were liable to a seven-year punishment and others liable to a lesser term of imprisonment.

The law also did not speak clearly about those cases, like Micallef’s, where although the punishment could exceed seven years, the term meted out was actually less and no appeal was filed by the AG.

By denying Micallef the right to have his case heard by the Drug Offenders Rehabilitation Board, the law was denying the applicant an opportunity to prove that his criminal wrongdoing had stemmed from “his acute drug problem.”

That argument was upheld by the court, presided over by Madam Justice Joanne Vella Cuschieri, who deemed the applicant’s claim to be justified and merited an effective remedy.

Like the Court of Criminal Appeal, the constitutional court held that the law was not uncertain but rather straightforward.

But part of the wording of article 8 of the Drug Dependence (Treatment not Imprisonment) Act meant that persons who ultimately got less than seven years jail, were being denied the right to go before the Drugs Court.

Worse still, courts of criminal jurisdiction were not consistent when applying this provision of law and this gave rise to a breach of the accused’s presumption of innocence and a blatant breach of the right to a fair hearing.

When considering the remedy for such declared breach, Madam Justice Vella Cuschieri observed that no pecuniary remedy could ever afford an effective remedy like that which Micallef could hope for before the Drugs Court.

Such remedy, including a more favourable non-custodial punishment, could spare the applicant more hardship than he already faced because of his drug problem.

For this reason, the court ordered the Court of Criminal Appeal to ascertain whether Micallef’s case satisfied all other conditions in terms of that law and once it did so, to assume the functions of a Drugs Court.

Proceedings may be put off indefinitely

Should that 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 amended to grant the applicant access to the Drugs Court, the judge declared.

Furthermore, the court ordered that once this judgment became final, a copy was to be served upon the Speaker and the Justice Minister.

Lawyers Noel Bianco and Jason Grima assisted the applicant.