Communicated on 29 January 2019

THIRD SECTION

Application no. 38161/15
Daniel Alexander HOLMES
against Malta
lodged on 30 July 2015

STATEMENT OF FACTS

The applicant, Mr Daniel Alexander Holmes, is a British national, who was born in 1978 and was at the time of the introduction of the application serving his prison sentence. He is represented before the Court by Dr F. Debono, Dr M. Spiteri and Dr A. Cachia, lawyers practising in Valletta.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

On 19 June 2006 when found with a joint in his hand, the applicant led the police to his apartment and showed them the plants he was cultivating. On that day, when the applicant’s house was searched the police found some cannabis plants being cultivated and others being dried (1.063 Kg ‑ 32 plants in all), as well as 0.24 grams cannabis blocks (raża), of a value of around 11,700 euros (EUR) [later recorded as EUR 13,802].

On 20 June 2006 the applicant gave a statement to the police, without the assistance of a lawyer, where he explained that the cannabis was for his personal use, and that he had made his own equipment with no one’s help. On the same day the Attorney General (AG) ordered that the applicant be tried by the Criminal Court.

On 21 June 2006 the applicant was brought, under arrest, before the Court of Magistrates (Gozo) as a Court of Criminal Inquiry. The applicant was charged with cultivation and importation of cannabis as well as possession of the same not for his exclusive use, under the provisions of the Dangerous Drugs Ordinance (Chapter 101 of the Laws of Malta). A legal aid lawyer was appointed to assist him. The applicant pleaded not guilty and was released on bail.

Later, during the committal stage, i.e. the stage of hearing the evidence before a magistrate, the applicant was represented by a lawyer of his choice, who then renounced his mandate on 9 July 2007. He was replaced by a legal aid lawyer until 11 September 2008 where the applicant informed the court that he would be represented by a lawyer of his choice.

During the committal phase the applicant made a statement, including, that he had brought some cannabis seeds with him from England.

On 18 January 2010 the AG issued the indictment.

2. The Trial

On 18 November 2010 the Criminal Court appointed a jury for 9 December 2010. On that date the applicant was represented by a lawyer of his choice, however the hearing was postponed.

The jury reconvened on 21 November 2011 and the applicant entered a guilty plea.

(a) First-instance

By a judgment of 24 November 2011, the Criminal Court found the applicant guilty of the charges against him and sentenced him to ten years’ and six months’ imprisonment and a fine of EUR 23,000 as well as the forfeiture of all the property involved in such crimes.

The Criminal Court reached its conclusion after having seen i) all the records of the case, including those of the compilation of evidence before the Court of Magistrates as a Court of Criminal Inquiry; ii) that in the sitting of 21 November 2011, in reply to the question as to whether he was guilty or not guilty of the charges preferred against, the accused stated that he was pleading guilty thereto; iii) that the court then warned the accused in the most solemn manner of the legal consequences of such statement and allowed him a short time to retract it according to Section 453 of the Criminal Code; iv) that the accused being granted such a time, persisted in his statement of admission of guilt. In assessing punishment the court considered other cases where a guilty plea had or had not been made as well as cases concerning a similar amount of drugs but considered that every case had to be seen on its own merits. It also took into consideration the applicant’s pleas to the effect that he was a drug addict who had since then settled down and had a three year old daughter as well as the prosecution’s pleas to the effect that the situation was one when the applicant was planning to traffic the produce and indeed was paying a considerable rent without being employed.

(b) Appeal

The applicant appealed against the punishment. In particular he considered that the cultivation was a joint venture between the applicant and another person (who had committed suicide in detention and thus could never testify), so only half the produce should have been taken into consideration. Moreover, he had been unemployed so he could only satisfy his addiction by cultivating the plants himself. He further referred to a series of judgments concerning stronger drugs and larger quantities where lower sentences and fines than those meted out to the applicant had been given. The applicant reiterated that he had surmounted his addiction and now had a daughter and a job. Lastly, he noted that in their plea bargaining discussions which were not conclusive the prosecution had not requested more than eight years imprisonment.

The judgment was confirmed by the Court of Appeal on 12 February 2014, which found no reason to disturb the discretion applied by the first‑instance court considering the quantum of punishment which fell within the parameters of the law. The Court of Appeal carefully examined the evidence produced during the committal stage and the only evidence as to applicant’s use of cannabis came from his statement wherein he admitted to smoking cannabis and that the plants he was growing were for his personal use. It considered therefore that his claim that he “lived to smoke cannabis” was merely an unproven allegation. Indeed, the quantity of cannabis found in his residence was more than just a simple domestic operation for self‑consumption. The police found plants in various stages of development and necessary lighting paraphernalia to ensure a healthy growth out of the sight of prying eyes and cannabis grass packed in separate packages, which would not have been required if all the cannabis grass in the flat was meant for his personal consumption. It further considered that the applicant’s allegation that a certain B. had also been involved, contrasted with his statement to the police, which the applicant did not contest, neither in respect of its legality, voluntariness or content. Indeed the applicant admitted to the accusation brought against him. Furthermore, he could not expect a reduction of punishment solely because he had not resisted the police. The Court of Appeal also considered that comparisons with other cases were inappropriate and that it was not bound to follow any sentence indicated by the parties. Having examined the remainder of the applicant’s arguments it reiterated that the applicant had pleaded guilty to very serious offences.

3. Constitutional redress proceedings

The applicant lodged constitutional redress proceedings. Relying on Articles 6, 7 and 14 of the Convention, he complained about: a lack of legal assistance during the pre‑trial investigation; that during the collection of evidence stage (kumpilazzjoni) before the court of magistrates, a legal aid lawyer without any experience of criminal law and paid by the prosecution, had been appointed to assist him; the power of the Attorney General (AG) to decide in which court he would be tried, with the consequence this had on punishment; discrimination in connection with the application of such power in his case; an unfair trial on the basis of procedural irregularities; a lack of a trial within a reasonable time; and a lack of proper review of his punishment by the Criminal Court of Appeal. He further complained about a lack of legal certainty and the application of a punishment without law in connection with the fact that the offence of ‘trafficking’ encompassed “cultivation for exclusive personal use” ‑ in his view since the law did not provide for cultivation for personal use (as suggested in the United Nations Convention