The mandatory confiscation of undeclared cash in excess of €10,000 in terms of cash control regulations formerly in place breached a person’s fundamental right to property, the Constitutional Court declared.
The pronouncement was made in appeal proceedings filed by the Attorney General and the Police Commissioner against a judgment delivered by the First Hall, Civil Court in June, in a case involving a passenger caught with €34,970 in cash by customs officials at Malta International Airport.
Spanish resident Ahmed Alhadi Khalleefah Suwah, had just stepped off a flight from Madrid two years ago, when he was arrested after failing to declare the cash, well in excess of the statutory limit of €10,000.
That amount was returned to the man, while the remaining €24,970 was seized and presented in court.
The man pleaded not guilty and subsequently requested a constitutional reference, challenging the mandatory confiscation of the money and claiming that such a drastic measure breached his fundamental rights.
The First Hall, Civil Court had upheld the accused’s argument, stating that the law did not allow a fair balance between the rights of an individual and the interests of the State.
Failure to declare the cash at customs control would result in the confiscation of a substantial amount of cash, thus placing an onerous and disproportionate burden upon the accused, that court declared.
By the time proceedings reached appeal stage, the relative regulations had been repealed by a legal notice that came into effect in July.
Now, the confiscation of the excess cash is no longer mandatory and rather than a fine of 25% on the total amount of cash carried, the law imposes a fine of 55% of the excess plus €50.
Moreover, a fund has been set up, administered by the Tax Commissioner, specifically intended to receive monies seized under such circumstances and to be released to the accused once the competent authorities determine whether those sums are linked to criminal activity.
The Constitutional Court, presided over by Chief Justice Mark Chetcuti, and Mr Justices Giannino Caruana Demajo and Anthony Ellul, started off by taking note of this change in the applicable law.
The court observed that these cash control regulations were intended to combat money laundering and other serious crimes including drug trafficking, financing of terrorism and tax evasion.
Confiscation of the excess cash was thus a measure to safeguard society against crime, the court observed.
Yet, there had to be a reasonable relationship of proportionality between the means employed and the aim pursued, said the court, citing an ECHR judgment in Mamidakis vs Greece.
Dismissing the appeal, the court said that under the law as applicable before, in case of conviction, the accused risked forfeiting 96.5% of his money.
The regulations previously in force allowed the court no discretion in case of a conviction and all cash in excess of €10,000 was confiscated, resulting in a situation that did not allow for balance between the general interest and the individual’s right to the enjoyment of property in terms of the Constitution and the European Convention on Human Rights.
Lawyer Arthur Azzopardi appeared for the defence.