Judge declares provision of drugs law unconstitutional, orders Parliament to be served with copy of judgment

A judge has ordered that the Speaker of the House of Representatives and the Minister for Justice be served with a copy of a decision handed down today, in which she declared a disposition of the Drug Dependency (Treatment not Imprisonment) Act to be unconstitutional.

This emerged in a ruling handed down on Tuesday by the First Hall of the Civil Court in its Constitutional jurisdiction, presided by madame justice Joanne Vella Cuschieri in a human rights case filed by disbarred former notary Reuben Micallef, whose appeal against his 2020 conviction for fraud and its related five-year prison sentence is currently still pending. 

Micallef had been charged after a police investigation in 2007 had identified a string of fraudulent transactions and bounced cheques through which he allegedly swindled at least 12 companies out of thousands of euros. He was later sentenced to five years in prison for these offences.

After filing his appeal, Micallef’s lawyers Jason Grima and Noel Bianco had filed an application under the Drug Dependence (Treatment not Imprisonment) Act, requesting the Court of Appeal convert itself into a Drugs Court in view of Micallef’s “acute” drugs problem, which they said had been the driving factor behind his crimes. It was argued that Micallef had since overcome his addiction and deserved the right to prove that his drug problem had motivated his crimes.

That request was, however, rejected by the Court of Criminal Appeal in February 2021, after the Attorney General had raised an objection, stating that the offences with which Micallef had been convicted were punishable with imprisonment for over seven years - arguing that this rendered him ineligible to request a Drugs Court conversion, even though he had been jailed for only five years.

In their application for a Constitutional reference, Micallef’s lawyers pointed out that the Attorney General had not filed any appeal against the man’s five-year sentence and therefore there was no chance that his punishment would be increased, arguing that it was the actual sentence which had to be taken into account when deciding on a Drugs Court request and not the potential maximum.

They argued that the appellate court’s rejection of his request constituted a breach of his fundamental rights, as it discriminated between persons charged with offences punishable with imprisonment for over seven years and those whose charges carried lesser sentences.

In addition, it was argued that the law was not clear on whether the article of the Drug Dependence (Treatment not Imprisonment) Act in question, allowing the conversion of the court, uses the actual punishment inflicted or that potentially inflicted as the deciding criterion.

This article of the law was breaching Micallef’s right of access to a Drugs Court, arguing that this right was enshrined in the Constitution and the European Convention on Human Rights.

The State Advocate had counter-argued, stating amongst other things that Micallef had only filed the Constitutional case because the Court of Criminal Appeal had not entertained his requests, and adding that there was “absolutely nothing which breaches any of the applicant’s fundamental rights in all this.” 

In his reply, the State Advocate had also pointed out that Micallef had not indicated which of his fundamental rights were supposedly breached, adding that the charges against him did not deal with drug offences, going on to state that “the fact that the law he cited did not apply to his case did not make it [that law] illegal.”

Micallef’s lawyers had later filed a note, specifying the articles of the Constitution and Convention which they were claiming to have been breached in his case.

In her judgement on the matter, Madam Justice Vella Cuschieri rejected as “legally mistaken” the State Advocate’s argument that Micallef’s request was invalid as he had not been charged with drug-related offences, but with fraud.

On the merits of the case, the judge observed that Micallef had exhibited an affidavit in which he explained how he had ended up using drugs after the breakdown of a relationship he was in, had led him to rekindle friendships with former university course mates who had introduced him to substance abuse. 

With regards to the fraud allegation, Micallef insisted that he had been used by two individuals, David Coleiro and Raymond Debono, who had taken advantage of his addiction to involve him in a joint venture, importing tiles from Libya. This had set in motion a series of events which had led to him being unable to repay a €12,000 deposit due to his cheque account having been closed.

His affidavit goes on to explain that he had failed to exhibit any explanation or evidence of his own during the course of criminal proceedings against him, due to the fact that he had been in severe drug withdrawal.

Micallef asked the court to grant him the opportunity to be heard by a Drugs Court, “as is granted to other citizens.”

The judge examined, at length, the February 2021 judgement handed down in his case by the Court of Criminal Appeal, in which his request for a Constitutional reference was rejected, as well as the articles of the Constitution and the European Convention on Human Rights.

This examination also encompassed Micallef’s other complaints on legal uncertainty and his right to be tried by a Drugs Court, as well as the relevant provisions of the Drug Dependency (Treatment not Imprisonment) Act.

“It is clear to this Court that this law… imposes on the judge the obligation to treat the accused as if he was guilty of all the charges against him and also assume that the maximum punishment would be inflicted…This Court finds that this is clearly a blatant breach of subarticle 5 of Article 39 of the Constitution and the second sub article of Article 6 of the Convention, which state that whoever is accused with a criminal offence is to be treated as innocent until proven guilty or the charges are admitted.”

The judge highlighted the fact that the law, as it stands, also clearly distinguishes between persons charged with offences punishable by imprisonment for up to seven years and persons who, although charged with offences which exceed the seven-year threshold, are eventually handed a lesser punishment.

The court ruled that it was clear that the only reason for this distinction was that for the purposes of the Drug Dependence (Treatment not Imprisonment) Act, the accused was being treated as guilty, despite the fact that no sentence had yet been imposed. Even worse, was the fact that this could even happen after the accused was cleared of some of the charges, noted the judge.

Finding a breach of Micallef’s rights, the court declared that article 537 of the Drug Dependence (Treatment not Imprisonment) Act breached the fundamental right to a fair hearing and therefore should have no effect at law. It ordered the Criminal Court, after ensuring that the case satisfied the legal requirements, to allow the man to request it convert itself into a Drugs Court.

Should the Court of Criminal Appeal then rule that this is not possible under the law currently in force, the judge ordered that the proceedings against Micallef be adjourned sine die “until the legislator amends the law in such a way as to legally provide the applicant access to a Drugs Court under Chapter 537.”

This was the only real and fitting remedy for Micallef, said the judge, remarking that monetary compensation would not be an effective remedy in view of his drug addiction, for which he needed the assistance available under the Drug Dependence (Treatment not Imprisonment) Act.

As the court had declared the law in question was in breach of the Constitution and the European Convention on Human Rights, it also ordered that a copy of it be served upon the Speaker of Parliament and the Minister for Justice.

Lawyers Noel Bianco and Jason Grima represented Micallef in the proceedings.