Lawyers demand changes to ‘obscene’ drug laws

The cultivation of drugs for personal use should no longer be considered as drug trafficking, lawyers Franco Debono and Gavin Gulia told MaltaToday.

The lawyers have presented two separate Constitutional cases after two men were each charged with drug trafficking after being found in possession of small amounts of cannabis.

However under Maltese laws on trafficking, both men face a minimum six-month sentence.

Pointing out that the Charter of Fundamental Rights of the EU makes it clear that 'the severity of penalties must not be disproportionate to the criminal offence,' Gulia said: "The penalty of mandatory imprisonment for cultivation of a very small amount of cannabis is, in my words, obscenely disproportionate to the offence, to put it mildly."

Gulia's client, Eugenio Camenzuli, was jailed for six months and fined almost €500 for being in possession of four cannabis saplings, which weighed 0.020 grams.

Although Camenzuli had always had a full-time job, was respected and trusted at his work place and had successfully completed a drug rehabilitation programme, the magistrate had no other option to impose the mandatory six-month sentence.

Criminal lawyer Franco Debono explained to MaltaToday that currently, the law makes no distinction between cultivation for personal use and drug trafficking.

"My client is facing a minimum six-month sentence after admitting to cultivating three small plants of cannabis which were clearly intended for personal use," Debono said.

Debono's client, Adrian Marmara, who he described as a respected family man, is also facing a six-month term for growing three cannabis plants.

Pointing out the lacuna in Maltese law, Debono said that anyone growing cannabis for personal use automatically faces a trafficking charge.

Maltese law states that the word 'dealing' includes cultivation of drugs and does not give the court discretion as it does in the case of importation.

The law says that importation of drugs is considered as trafficking if 'the Court is satisfied that such importation was not for the exclusive use of the offender.'

The lawyers have argued that the same discretion should be applied for the cultivation of drugs and explained that the changes importation charges were introducing after Malta was ridiculed for sentencing a 16-year-old to six months in prison for carrying 1 gram of cannabis while entering the country.

In 1997, Gisela Feuz - a 16-year-old Swiss student - imprisoned over less than one gram of cannabis, prompted international furore and eventually led the government to sheepishly withdraw the stipulated mandatory prison term for importation.

Feuz was caught with just Lm10 (€23) worth of cannabis, and admitted to the police that it was for her to share with her partner. Her partner was freed from all accusations but Feuz was imprisoned for a mandatory six months after the Court found her guilty of importing drugs with the intent of trafficking.

Debono and Gulia, who both happen to be former MPs, have filed Constitutional cases to declare this proviso of the law as being in breach of human rights.

Debono said that he had asked for such changes back in 2011 when he had presented a private members' motion on the holistic reform of justice and home affairs, consisting of 24 major areas of reform including a reform of the drug laws.

"I am not advocating an overhaul in our laws, it only needs fine-tuning. The changes which were applied to importation should apply for cultivation," he said.

Gulia also noted that the law went against the spirit of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which Malta signed and ratified in 1996.