Man unable to benefit from new drug laws highlights legal loophole

A man appealing a drug trafficking conviction is asking to have his case referred to the Constitutional Court for a decision on whether his cases’ ineligibility to be heard before a drugs court breached his right to a fair trial. 

Siggiewi resident Mario Zammit, 43, had appealed to the Court of Criminal Appeal after being handed a six-month prison sentence and €800 fine in September 2014 for having sold heroin for a five-month period in 2009. 

The unlucky Zammit’s scrupulous attendance for his court sittings had worked against him, as only a few months after his sentence, the reform of Malta’s drug laws with the introduction of the Drug Dependence (Treatment not Imprisonment Act) in April 2015 Zammit would have qualified for rehabilitation and not prison. 

To qualify for such a sentence, he would have had to prove that he was medically dependent and had trafficked to sustain his habit, as well as having to prove that he was no longer a drug user. However the reform was implemented in such a way as to benefit every person accused, in every stage of proceedings, except the appeal stage, argued his lawyers. 

Zammit had requested the Court of Criminal Appeal to convert itself into a drugs court to have it referred before the board, which would decide on whether to imprison him or send him to drub rehab.

It its 2014 decision, the Criminal Court had held that this benefit only applied to a person accused and the Attorney General’s office argued that once convicted, a person was no longer accused. 

His lawyers, Veronique Dalli and Dean Hili, filed an application to the Court of Criminal Appeal, but this request was not upheld, with the court saying its hands were tied and that this disposition of law applied to every court but the Court of Criminal Appeal. Judge Edwina Grima acknowledged this to be an anomaly, however, and also ordered her preliminary ruling be sent to minister for justice to bring the anomaly to his attention.

The defence filed another request, arguing that the fact that this law was listed under the subheading dealing with the Court of Magistrates did not prevent it from applying to the Criminal Court Court and the Court of Criminal Appeal. 

The defence is arguing that a person who stands in judgment before the Criminal Court has to be treated in the same manner as one before any other court. The court cannot allow a certain benefit to persons appearing before one court and not the others. “Penal laws are the same and must be applied uniformly across the board,” argued Dalli.

This had been done before, argued Dalli, citing the 2008 case Police v Diego Grixti, in which judge Vincent DeGaetano had decided to use a benefit, available to the Court of Magistrates, in the Criminal Court.

He is asking leave from court to go before the constitutional court to see whether the law breaches his fundamental human right to a fair hearing, enshrined in the Constitution and the European Convention on Human Rights.

Zammit could not have made his request before, as the law had not come into effect at the time, reads the application.