Judge rejects smugglers’ request to delay payment of two €174,000 fines

A judge has turned down a request for an interim measure to delay €174,000 fines imposed on two amateur fishermen-turned-cigarette smugglers, after noting that the request had been made a full year after they had been handed the fine.

Vincent Xuereb, 50, from Ghajnsielem, and Noel Vella, 42, from Rabat, Gozo, had been arrested in February 2013 after an AFM air wing patrol craft had observed and filmed a large number of boxes being transferred from the MV Golden Dawn, a vessel notorious for its history of illegal operations, onto their vessel, the Sea Lioness, at sea.

An AFM craft then intercepted the Sea Lioness, finding its cargo to be thousands of contraband cigarettes.

In March 2018, Xuereb and Vella were convicted and handed 18-month jail terms, suspended for 2 years. In addition to the suspended prison sentence, the men had also been fined €173,983.68 each, of which €57,994 was to be paid to the Customs Department, together with the confiscation of all the merchandise on board, as well as a further sum of €23,000 in lieu of the court confiscating the vessel.

The sentence was confirmed when their appeal to that conviction was rejected in March 2023.

In March 2024, the men filed constitutional proceedings asking the court to declare both judgments null because they contended that the two judgments were conflicting, which created legal uncertainty, which in turn, they said, breached their right to a fair hearing. 

Together with the constitutional case, Xuereb and Vella requested the court suspend the execution of their sentence until the constitutional case is decided.

In her decision to reject the request for suspension, madame justice Doreen Clarke observed that what was being requested was, in effect, an interim measure. Interim measures are urgent measures which apply only where there is an imminent risk of irreparable harm, said the judge.

Madame justice Clarke noted that the request for an interim measure had been filed a year after the judgement against the men had been delivered. “This is a clear and unequivocal indication of the lack of urgency, which is a primary requirement and a fundamental consideration in the granting of interim measures,” ruled the judge.

Additionally, in terms of the original sentence, two thirds of the fine was to be paid to the Registrar of Courts in instalments, with the remaining third payable to the Director General of the Customs Department. Although no arrangement for the latter to be paid in instalments had been made, the court observed that neither had the department initiated legal action to recover the fine.

But Xuereb and Vella had filed a constitutional case attacking the fines, and argued that if they were to become unable to continue honouring their payment agreements, the entire amount of the fine would become due and could be then converted to prison time if unpaid. Were that to happen, and their constitutional case still not decided, they would potentially end up serving time in prison for nothing, should their constitutional complaint eventually be upheld.

This argument did not gain any traction with the judge, either, however. “From these submissions, it is also clear that not even today, a year after the judgement by the Court of Criminal Appeal, is there any imminent risk of irremediable harm to the applicants. This is because what the applicants are taking as harm, that is, incarceration should they be unable to continue to pay the fine or executive measures should they be unable to pay the Director of Customs, is hypothetical and absolutely not imminent.”

For these reasons, the judge dismissed the request for an interim measure, ordering Xuereb and Vella to also pay for the costs of the proceedings.

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