A practice, under an old law, where Customs officials used to seize all undeclared cash from travellers carrying more than the allowed maximum of €10,000, without seeking an explanation, has been declared unconstitutional.
The Constitutional Court ruled on Wednesday that automatic forfeiture of all undeclared cash without allowing presentation of proof that the money was from a legitimate source had breached fundamental property rights.
The decision was delivered following an appeal filed by the Attorney General against a decision by the First Hall, Civil Court in its Constitutional Jurisdiction.
The case went back to March 2019 when traveller Omar Azumi, heading for Manchester via Istanbul, was found to be carrying €200,182 in cash.
€10,000, the amount permitted by law, was handed back to the passenger but the rest was confiscated by Customs officers and exhibited in court when criminal action was taken against Azumi.
At the time of the incident, confiscation of that excess cash was mandatory.
Azumi’s lawyer challenged the validity of automatic forfeiture by requesting a reference to the constitutional courts.
The First Hall had found that the automatic seizure breached the person’s right to property on the basis of Article 1 of Protocol 1 of the European Convention of Human Rights.
The Constitutional Court on Wednesday dismissed the AG’s appeal, observing that if found guilty in the criminal proceedings, the Magistrates’ Court would have no option but to order the forfeiture of that excess sum together with payment of a €50,000 fine.
Such aggregate punishment was deemed unjustified and not proportionate given the circumstances of this case.
Azumi had explained to police, on oath, that most of the cash he had been carrying had been handed to him by a business partner specifically to open a business account for a UK-registered company.
He had instructed Azumi to declare all the money at customs both in Malta and upon arrival in the UK.
But Azumi, in a hurry and anxious not to miss his flight so as to make it to a pre-scheduled appointment for surgery at a Manchester hospital, had failed to declare the cash.
His version was confirmed by his business partner who also gave police details as to why he had to use cash rather than bank transfer for the new account.
From the acts of the proceedings it did not appear that police had linked that cash to any criminal activity or any tax evasion, the court observed.
Therefore, confiscation of the cash would be unjustified and in breach of Azumi’s fundamental rights, since the element of proportionality was absent, said the court.
Although such confiscation was intended to protect the general interest of the community by curbing money laundering and other serious financial crimes, the former cash control regulations did not give the accused the opportunity to prove that the money was from a legitimate source, the court observed.
Since then, by Legal Notice 285/2020 the legal regime has been changed so that confiscation is no longer mandatory.
The AG’s appeal was turned down and the case was sent back to the Magistrates’ Court for the criminal proceedings to continue.
Lawyer Arthur Azzopardi is counsel to Azumi.