A judge has ruled that the punishment for those found guilty of failing to declare the possession of more than the maximum €10,000 when leaving or entering the country was disproportionate and in breach of the fundamental charter of human rights.

Legal experts believe that the ruling by the First Hall of the Civil Court in its constitutional jurisdiction could potentially open a can of worms since those affected by such a decision in the past could claim compensation.

A notice at Malta International Airport alerting travellers about their cash limits.

They say there is no prescriptive period on fundamental human rights so anyone who was judged on the basis of this law can file a constitutional case and seek redress.

The matter has now been brought to the attention of the House of Representatives, which was sent a copy of the decision.

Madam Justice Joanne Vella Cuschieri ruled in favour of the applicant, Jason James Agius, in connection with a flight in September 7, 2017. Mr Agius was about to get onto an Emirates flight to Thailand through Dubai when he was caught in possession of a total of €36,355 in cash. Customs officers stopped him and searched his possessions where the cash was found.

According to law, he was only allowed to carry €10,000 and the remaining €26,355 were forfeited to the customs controller.

Some eight months later, police from the Economic Crimes Unit called him in for questioning. He released a statement and, as is his right according to law, refused to reply to any of the questions put to him. Eventually, charges were issued and he was arraigned before the Magistrates’ Court charged with failing to inform the customs comptroller that he was carrying more than the permissible amount of cash. The criminal case was put on hold pending a decision by the Constitutional Court.

In most of the cases, the cash was detected by sniffer dogs

According to law, the Comptroller of Customs shall seize the sum in excess of €10,000, or the whole amount when the cash is indivisible, and the person shall, on conviction, be liable to a fine equivalent to 25 per cent of the value of all the cash being carried, including the €10,000. The court shall also order the forfeiture of the undeclared amount of cash in excess of €10,000.

Mr Agius argued that the fine and the forfeiture meant that he would be losing €35,443.75 from the total sum of €36,355, remaining with just €911.25. As a result of the cumulative effect of the punishment set out by the law, he was losing a substantial amount of the €10,000 he was allowed to carry.

The court upheld his argument, declaring the law as “disproportionate” and one which failed to strike a fair balance. Madam Justice Vella Cuschieri also ruled that the law was also in breach of the European Convention of Human Rights with regard to the peaceful enjoyment of property.

Quoting from case law and teachings on the proportionality of punishments, she said courts need to strike a fair balance between the general interest of the community of the requirements of the protection of an individual’s fundamental rights. In this case, she said, the required fair balance and proportionality was lacking and was in breach of the constitution and the person’s right to the enjoyment of his property.

She, therefore, ordered that a copy of the judgment be sent to the Speaker of the House of Representatives according to law which stipulates that the speaker must inform the House about the decision. Also according to law, the prime minister may, within six months, order the removal of the inconsistency with the Constitution of Malta or with the relevant human right or fundamental freedoms.

Lawyers Joseph Gatt, David Camilleri and Charlon Gouder represented Mr Agius. 

The Customs Department’s anti-money laundering team stepped up its efforts to catch undeclared money in November 2018.

Since then, officers have caught a total of €1.73 million in undeclared cash.

In 2018, the team had five cases of undeclared cash totalling €75,065. Four of the cases, amounting to €58,381 were non-EU while the remaining case of €16,684 was an EU case.

In 2019, customs found 66 cases of undeclared cash amounting to a total of €1.55 million. So far this year, a total of eight cases of undeclared cash have been found, amounting to €106,114. In most of the cases, the cash was detected by sniffer dogs.