Court says same punishment for cannabis cultivation, trafficking is not human rights breach

The courts have rejected a claim, filed by a man undergoing trial for cannabis trafficking, that the fact that cultivation and trafficking cannabis were punished in the same manner constituted inhuman and degrading treatment.

Salvatore Oliveri’s house had been searched by police in April 2012 and some cannabis plants had been found. It was explained to him that cultivation and trafficking are punished in the same way – a prison sentence between 6 months and ten years.

He had argued that in Italy, the punishment is much lighter and that over there, cultivation is not deemed to be the same as trafficking.

Oliveri contended that the lack of distinction between cultivation and trafficking in the law was a violation of his right to freedom from inhuman and degrading treatment.

He had claimed to never having planned to sell the drugs and that the plants recovered were objects of curiosity as he loved plants.

Although criminal proceedings against him had not yet been concluded, he had filed this case to attack the law under which he was accused as violating the Constitution and the European Convention on human rights.

He said that the law itself contained an element of humiliating and degrading treatment as it did not distinguish between cultivation and trafficking, pointing out that the two deeds differed in both intention and action.

The Attorney General however argued that the EU Charter of Fundamental Human Rights was not applicable as no EU laws were being impugned. The complaint emanated from domestic legislation and therefore was beyond the scope of this charter.

The public prosecutor argued that in Tyrer v UK, the European Court had observed that whilst it may be that the very fact that a person is convicted may be humiliating for him, it was not relevant to the rights against inhuman and degrading treatment.

The judgment had established that only in exceptional circumstances may a particular sentence raise an issue under the Convention and that the fact that an offence is punished more severely in one country than another does not suffice to establish that the punishment is inhuman and degrading.

Likewise with the UN Convention on human rights, it argued, it was an established principle that such international treaties and conventions set a minimum standard of punishment. Malta was free to impose a more severe standard and it had.

The AG also pointed out that the pending criminal proceedings had not yet been decided and therefore it could not be said with any certainty that he would be found guilty.

The court found for the defendants, Justice Joseph Zammit McKeon laying out his reasons for doing so in an erudite judgment. While the court agreed that this was a national law dispute and that therefore the EU Charter on fundamental human rights was not applicable, it disagreed with the Attorney General’s assertion that pending criminal proceedings must necessarily be concluded before filing such a case.

The EU Charter on fundamental human rights was not applicable to the case, said the court, as it was “most evident that the plaintiff’s complaint was not directed at some directive or treaty of the European Union, but at domestic legislation.” It added however, that these proceedings were indeed necessary at the stage they were filed.

“Certainly the defendants cannot claim that the applicant had an effective remedy in the possibility of an appeal should he be found guilty,” as his contention that trafficking and cultivation should not be dealt with in the same manner for sentencing purposes “would not be addressed by simply filing an appeal, but can only be addressed before this court in its Constitutional jurisdiction.”

However with regards to the subject matter of the case, the claim that the punishment for cultivation and trafficking constituted degrading treatment, Justice Mckeon disagreed. He held that objectively speaking, the simple fact that the punishment was the same for both crimes did not constitute degrading treatment nor was it out of proportion, as the State would in any case be obliged to guarantee the dignity of the prisoner and dismissed the Constitutional case.