A court has declared a legal provision intended to deter inmates from committing drug offences in jail to be in breach of prisoners’ presumption of innocence.
The provision, according to a court in its constitutional jurisdiction, effectively denies them the right to benefit from policies encouraging the rehabilitation of drug offenders.
The issue came to the fore in a constitutional reference requested by Mark Pace who last year was found guilty of having been in possession of psychotropic drugs when he was an inmate inside Division 6 at the Corradino Correctional Facility in January 2019.
Pace was handed a six-month effective jail term by a Magistrates’ Court, prompting an appeal to the Criminal Court and subsequently a request by his lawyers for a reference to the constitutional courts.
Their request stemmed from the fact that article 13(b) of the Drug Dependence (Treatment not Imprisonment) Act, clearly stated that a drug offender could not avail himself of the provisions of that act which included the possibility of having his case decided by a drug court.
That article stated that when “the offence against the drug laws is one committed in or in relation to a correctional facility”, the law did not apply.
Pace’s lawyers claimed that the law created a specific category of individuals, namely those who committed a drug offence while in prison, and discriminated against them by denying them the right to have their case decided by a drug court.
The matter landed before the First Hall, Civil Court, in its constitutional jurisdiction, presided over by Madam Justice Joanne Vella Cuschieri, who observed that chapter 537, namely the law at issue, specifically stated that it was not applicable “‘when the offence was committed, (not allegedly committed)’” at a correctional facility.
Thus when deciding whether it was to convert itself into a drug court, the court would “clearly, even without necessarily wanting to,” be deciding whether the offence was “committed” in a correctional facility.
And by so doing, the court would be expressing itself on the innocence or otherwise of the accused before the case has been decided on the merits, said Madam Justice Cuschieri.
That would be “a judicial decision concerning him [the accused] reflect[ing] an opinion that he is guilty” and would breach the accused’s presumption of innocence in terms of caselaw by the European Court of Human Rights.
The intention of the legislator was doubtlessly for this provision to serve as a deterrent against such offences taking place in a correctional facility where the need for discipline was “predominant and crucial”.
But the way it was being applied was amounting to a breach of the accused’s presumption of innocence and right to a fair hearing.
Although the legislator’s aim was legitimate, the court observed that the differential treatment of those who committed such offences in jail was not just and proportionate.
“Was it just for the law, with the excuse of acting as a deterrent, to deny a person the possibility of rehabilitating himself from the deadly drug habit? This was effectively what the court deemed to be taking place through the application of article 13(b), with the excuse that such a restriction was to serve as a deterrent.”
Surely the legislator may find other ways of applying such a deterrent, remarked the judge.
One easy example was to introduce an aggravating factor that would increase punishment when the offence is committed in a correctional facility.
That would not deny such drug offenders the possibility of rehabilitation which, after all, would not only benefit the accused but society in general.
When all was considered, the court concluded that the discrimination at issue was “highly excessive,” resulting in a breach of the applicant’s fundamental rights.
The concept of rehabilitation at the heart of the Drug Dependence (Treatment not Imprisonment) Act must apply indiscriminately in respect of every offender who satisfied the requirements laid down by that law, irrespective of whether the offence was committed at Corradino Correctional Facility or elsewhere.
The current application of article 13(b) violated fundamental rights, declared the court, ordering a copy of the judgment to be Court Registrar, the Criminal Court as well as the Speaker in Parliament.
Lawyers Franco Debono and Marion Camilleri assisted Pace.