Time to move forward! | Karen Mamo

Malta’s drug scene has evolved from the depenalisation of small amounts of drugs in 2014, to the partial decriminalisation of cannabis in 2021. But ten years later, are all people who use drugs in Malta benefitting from the same legal safeguards? 

The Portuguese decriminalised model of 2001 provided the first example of alternatives to incarceration for drug possession charges. The reform established that those caught with up to 10 days’ supply of any drug were spared arraignment and instead diverted to the Commissions for the Dissuasion of Drug Addiction.

People diverted to the Commission faced three possible scenarios; discharge, pay a fine, or diverted to counselling or more specialised treatment services. This proved significant on various fronts, particularly that related to court arraignments falling to 15.7% in 2019 when compared to 40% in 2001. 

Inspired by this model, the Maltese Drug Dependence (Treatment not Imprisonment) Act (2014), whereby small amounts of drugs have been depenalised, was a game changer for thousands of people who use drugs in Malta. The Act recognised the validity of alternatives to incarceration and prioritised public health over criminalisation.

Under this Act a person found in possession of less than 2g or two pills of any drug for personal use (apart from cannabis standing at 28g in public as per legal amendments of 2021) is arrested by the police for interrogation and the drugs confiscated. Instead of being taken to court, the person is summoned to appear in front of the Commissioner for Justice. If found guilty, a fine of between €75 and €125 is imposed.

Under the present depenalised framework, those apprehended within two years of committing a second offence no longer benefit from the possibility to pay a fine and are instead diverted to the Drug Offenders Rehabilitation Board. The Board has the right to issue any necessary order, including the need for the accused to provide samples of urine and attend regular visits with an appointed rehabilitation official. Failure to comply with an order may be punished by a fine or three months in prison. 

Promising changes 

Taking into consideration these changes, including the partial decriminalisation of cannabis (no administrative or criminal consequences), have legal amendments achieved their overarching goal to prevent harm from drug laws, and drug policies? 

If one had to look at drug arraignments and fines issued by the Commissioner for Justice in the past 10 years, numbers speak for themselves. The National Report on the Drug Situation and Responses in Malta of 2024 reported that between 2015 and 2023 a total of 3,905 people arrested by the police on possession charges have been diverted to the Commissioner instead of being taken to court. Very promisingly, in 2023, only 88 cases were processed by the Commissioner, as opposed 693 cases in 2017. Furthermore, the number of drug law arraignments by the police in 2023 stood at 80 cases (out of which 18 for possession charges). This is a huge difference from the 623 arraignment cases for possession charges registered in 2017. Interestingly, over the years the most common charges were related to cannabis possession. 

This downward trend in arrests and cases diverted to the Commissioner reflect the positive outcome of a partially decriminalised system applied for cannabis-related activities, whereby up to 7g of cannabis in public and up to 50g of cannabis at home carry no consequences. As attested by the National Report on drugs, decriminalisation tools and depenalisation tools with more realistic thresholds have been more effective to protect people from the negative consequences of court proceedings and potentially imprisonment. 

Time for more changes 

Keeping in mind the initial positive outcome of a partially decriminalised model for cannabis, one questions: Is the possession of 2g or two pills of any drug indicative of dependence? 

No not at all! these numbers are more indicative of recreational drug use, and therefore in no need to be assessed by the Commissioner for Justice. 

Should the partial decriminalised tools applied to people who use cannabis be extended to all people who use drugs? 

Yes, without a doubt! People who use drugs are not criminals or all facing dependency-related issues. 

Should the provisions falling under a depenalised framework be applied only once and upon second arrest be diverted to the Drug Rehabilitation Board? 

Certainly not! Within a harm reduction and human rights-based approach to drug policy the application of depenalisation tools and administrative sanctions, such as fines, should not be limited to one occasion but rather applied in their entirety and without compromise or time limits. Depenalisation and decriminalisation tools should not be viewed as ‘a one time get out of jail free bonus card’, but rather recognised as preventive tools to reduce harms from drug laws and policies. 

The possibility to possess in public without administrative or criminal sanctions of up to 7g or seven pills of any drug (apart from cannabis) would shield thousands from unnecessary police harassment and legal risks. Furthermore, as per application of the Portuguese model, people apprehended with up to 10 days' supply of any drug (apart from cannabis), and not more than 50g or 50 pills of any drug at home, should be afforded the legal safeguards falling under a depenalised framework. These people should be diverted towards the Commissioner for Justice, and if requested by the person, access rehabilitation, healthcare and social services. 

Anonymised drug checking 

From a human rights perspective all people who use drugs would greatly benefit from decriminalisation tools and proportionate tolerated amounts. Moreover, these legal changes would facilitate access to non-judgemental educational tools and risk prevention services such as anonymised drug checking. Drug checking or pill-testing is a recognised public health tool by the European Union Drugs Agency and is accessible in various countries. It provides people who use drugs with an opportunity to check the pharmacological content of the substance and its potency. Drug testing is most significant to detect any synthetic substances and adulterants, both sources of heightened risks and unnecessary harms. 

In conclusion, the dawn of Malta's drug policy reform in 2014 and the introduction in 2021 of the partial decriminalisation of cannabis were pivotal to address the negative unintended consequences of criminalisation. In 2025, we have an opportunity to extend these human rights-based tools to all people who use drugs and ensure our laws and policies are people-centred, and committed to leave no one behind.