PORSENNA v. MALTA

THIRD SECTION

DECISION

Application no. 1109/16
Claudio PORSENNA
against Malta

The European Court of Human Rights (Third Section), sitting on 22 January 2019 as a Chamber composed of:

Branko Lubarda, President,
Vincent A. De Gaetano,
Helen Keller,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having regard to the above application lodged on 28 December 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Claudio Porsenna, is an Italian national, who was born in 1975 and at the time of the introduction of the application was detained in the Corradino Correctional Facility, Paola. He was represented before the Court by Dr J. Brincat and Dr S. Tonna Lowell, lawyers practising in Marsa.

A. The circumstances of the case

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

1. Background to the case

3. On an unspecified date a certain A.B. was intercepted in relation to drug trafficking. He claimed to have obtained the drugs from the applicant.

4. In line with Article 22 (2) of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta (hereinafter “the Ordinance”), on 3 May 2003 the Attorney General (hereinafter “the AG”) ordered that A.B. and the applicant be tried before the Criminal Court. A.B. and the applicant had been found in possession of 2000 grams and 2500 grams of cannabis, respectively.

5. Subsequently, on 29 September 2003 the AG issued a counter order (Article 31 of the Ordinance), ordering that A.B. be tried before the Court of Magistrates, as a court of criminal judicature. No such order was issued in respect of the applicant, whose criminal record was until then clean.

6. By a judgment delivered in January 2009 A.B. was found guilty (of the same offences as those with which the applicant stood charged) and sentenced to one year imprisonment, a fine and an order to pursue a rehabilitation programme. The court applied Article 29 of the Ordinance (see Relevant domestic law, paragraph 21 below) in relation to his penalty. A.B.’s guilty verdict was confirmed on appeal on 24 April 2010, but his sentence reduced to six months’ imprisonment.

7. In the meantime, on 4 May 2003 the applicant had appeared before the Court of Magistrates (as a Court of Criminal Inquiry), charged with drug related offences falling under the Ordinance, including possession and trafficking as well as conspiracy, together with a certain P. An indictment against the applicant and P. was issued on 2 October 2007.

8. The applicant pleaded guilty to the charges against him, but in his pleadings referred to the insistence of the AG to try him in the Criminal Court and the resulting discrepancy there would be in punishment vis‑à‑vis that imposed on A.B.

9. On 26 September 2012, the applicant was found guilty and sentenced to eight years’ imprisonment and to a fine of 15,000 euros (EUR). The court noted that the applicant was the mastermind behind the facts at issue.

10. The applicant appealed in respect of the sentence imposed and referred to the case of Camilleri v. Malta (no. 42931/10, 22 January 2013) concerning the same legal issue, and in respect of which the ECtHR had found a violation of Article 7. He reiterated his comparison to the case of A.B. and requested the court to apply Article 22 (2B) of the Ordinance.

11. On 30 July 2015 the Court of Criminal Appeal, whose remit was only to review the first‑instance judgment, confirmed the punishment imposed by the Criminal Court which had been handed down within the parameters of the law. As to the comparison with A.B., it noted that the court trying A.B. had given weight to the fact that A.B. had not been the one to take the initiative and that he had to benefit from a reduction in punishment in line with Article 29 of the Ordinance. However, in the applicant’s case, it was the applicant who imported the cannabis and who had recruited A.B. who in turn would sell it, and had prevailed upon him in so doing. The applicant had not cooperated with the police and his guilty plea was only submitted at the trial by jury stage. Given the quantity of drugs involved, the court was not ready to give another over lenient sentence. In that light, the court did not deem it appropriate to apply Article 22 (2B) of the Ordinance.

2. Constitutional redress proceedings

12. As allowed by Maltese law, on 2 June 2009, pending the above‑mentioned criminal proceedings against him, the applicant brought constitutional redress proceedings invoking Articles 6 and 14 of the Convention (and the corresponding Articles of the Constitution of Malta), complaining about the discretion of the public prosecutor to decide (“in secret”) in which court to try an accused, with the consequences this had on the applicable punishment. In particular he argued that the law failed to indicate any criteria or guidelines as to how such discretion should be applied. It thus lacked the required legal certainty and allowed for unequal treatment, impinging on the fairness of proceedings. Indeed, notwithstanding that his case concerned the same facts as those in A.B.’s case, he had been tried in a different court with a harsher spectrum of punishment. He further complained that it was only after his arraignment in court that he would know before which court he would be tried. Moreover, while the Attorney General had all the elements before him to decide on the matter, such evidence and information was not available to the applicant who thus was at unequal arms with the prosecution. He requested the court to order relevant redress.

13. By a judgment of 6 April 2011 the Civil Court (First Hall) in its constitutional competence rejected the applicant’s claims. Relying on domestic case‑law, the court considered that Article 6 regulated the fairness of the proceedings and not the means by which a person was brought to court. At the stage reached in the proceedings it could not be said that the applicant had suffered any disadvantage or that he would suffer any such disadvantage. Moreover, the requirement of impartiality did not apply to the prosecutor who did not decide on the guilt or innocence of the accused. The court held that while guidelines as to the AG’s discretion would be welcomed, their absence did not imply a violation of the Convention. In the court’s view the decision of the AG fell outside the scope of Article 6 of the Convention, and no question of equality of arms could arise at such stage. Further, the right to access to court did not entail that an accused could choose which court to be tried in. Lastly, since Article 6 did not apply in the present case, neither did Article 14.

14. The applicant appealed.

15. By a judgment of 16 March 2012 the Constitutional Court confirmed the first‑instance judgment embracing its reasoning and noting that Article 6 did not apply to the pre‑trial stage and thus to the AG’s decision which had no impact on a finding of guilt or innocence. It emphasized that Article 6 guaranteed a fair trial but not a just punishment.

3. Other relevant facts

16. Following the constitutional redress proceedings, on 29 March 2012 the applicant brought his complaints under Articles 6 and 7 of the Convention in connection with the above circumstances before this Court.

17. By a decision of the Court, in Single Judge Formation, of 11 June 2015, his complaints were declared inadmissible as being premature, the proceedings against the applicant being, at the time, still pending before the Court of Criminal Appeal (see paragraph 10 and 11 above).

B. Relevant domestic law

18. In Malta, at the relevant time, in cases such as the present one, it was the Attorney General as public prosecutor who decided before which court an accused should be tried and consequently which punishment would be applicable.

19. At the time when the applicant was indicted, Article 22 (2) of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, provided that the punishment before the Criminal Court (for the offences with which the applicant was charged) ranged between four years and life imprisonment, whereas before the Court of Magistrates the range was between six months as minimum and ten years as maximum. The provision, in so far as relevant, read as follows:

“(2) Every person charged with an offence against this Ordinance shall be tried in the Criminal Court or before the Court of Magistrates (Malta) or the Court of Magistrates (Gozo), as the Attorney General may direct, and if he is found guilty shall, in respect of each offence, be liable -

(a) on conviction by the Criminal Court -

(i) where the offence is one under article 4 or under article 8(c) or consists in selling or dealing in a drug contrary to the provisions of this Ordinance or in an offence under sub‑article (1)(f), or of the offence of possession of a drug, contrary to the provisions of this Ordinance, under such circumstances that the court is satisfied that such possession was not for the exclusive use of the offender, or of the offences mentioned in sub‑articles (1C) or (1D) or (1E), to imprisonment for life:

Provided that:

(aa) where the court is of the opinion that, when it takes into account the age of the offender, the previous conduct of the offender, the quantity of the drug and the nature and quantity of the equipment or materials, if any, involved in the offence and all other circumstances of the offence, the punishment of imprisonment for life would not be appropriate; or

(bb) where the verdict of the jury is not unanimous, then the Court may sentence the person convicted to the punishment of imprisonment for a term of not less than four years but not exceeding thirty years and to a fine (multa) of not less than two thousand and three hundred and twenty‑nine euro and thirty‑seven cents (2,329.37) but not exceeding one hundred and sixteen thousand and four hundred and sixty‑eight euro and sixty‑seven cents (116,468.67); and

(ii) for any other offence to imprisonment for a term of not less than twelve months but not exceeding ten years and to a fine (multa) of not less than four hundred and sixty‑five euro and eighty‑seven cents (465.87) but not exceeding twenty‑three thousand and two hundred and ninety‑three euro and seventy‑three cents (23,293.73); or

(b) on conviction by the Court of Magistrates (Malta) or the Court of Magistrates (Gozo) -

(i) where the offence is one under article 4 or under article 8(c) or consists in selling or dealing in a drug contrary to the provisions of this Ordinance or in an offence under sub‑article (1)(f), or of the offence of possession of a drug, contrary to the provisions of this Ordinance, under such circumstances that the court is satisfied that such possession was not for the exclusive use of the offender, or of the offences mentioned in sub‑articles (1C) or (1D) or (1E), to imprisonment for a term of not less than six months but not exceeding ten years and to a fine (multa) of not less than four hundred and sixtyfive euro and eighty-seven cents (465.87) but not exceeding eleven thousand and six hundred and forty-six euro and eighty‑seven cents (11,646.87); and

(ii) for any other offence to imprisonment for a term of not less than three months but not exceeding twelve months or to a fine (multa) of not less than four hundred and sixty‑five euro and eighty‑seven cents (465.87) but not exceeding two thousand and three hundred and twenty‑nine euro and thirty-seven cents (2,329.37) or to both such imprisonment and fine, and in every case of conviction for an offence against this Ordinance, all articles in respect of which the offence was committed shall be forfeited to the Government, and any such forfeited article shall, if the court so orders, be destroyed or otherwise disposed of as may be provided in the order:

Provided that, for the purposes of this sub‑article, when the person charged has not attained the age of sixteen years and unless he is charged jointly with any other person who has attained the age of sixteen years, any reference to the Court of Magistrates (Malta) or to the Court of Magistrates (Gozo) shall be construed as a reference to the Juvenile Court:

Provided further that where a person is convicted as provided in paragraph (a)(i) or paragraph (b)(i) and the offence has taken place in, or within 100 metres of the perimeter of, a school, youth club or centre, or such other place where young people habitually meet, or the offence consists in the sale, supply, administration or offer to do any of these acts, to a minor, to a woman with child or to a person who is following a programme for a cure or rehabilitation from drug dependence, the punishment shall be increased by one degree.”

20. Following amendments in 2014, by means of Act XXIV of 2014 which came into force on 14 August 2014, relevant guidelines in respect of the AG’s discretion were put in place. Furthermore, the following sub‑articles were added to Article 22, which (after slight amendments in 2015 in respect of sub-article (2A)) read as follows:

“(2A) (a) In giving a direction in accordance with sub-article (2) the Attorney General shall give due consideration to the guidelines included in the Fourth Schedule to this Ordinance;

(b) Where the Attorney General has directed that the person accused be tried in the Criminal Court in accordance with sub-article (2), upon the termination of the inquiry, if the Court of Magistrates, as a Court of Criminal Inquiry, decides that there are sufficient grounds for committing the accused for trial on indictment, the accused may, by application to be filed in the Criminal Court within seven days from the conclusion of the inquiry or within seven days from the date on which the accused is served with the bill of indictment, demand the said court to order that he be tried in the Court of Magistrates and the Criminal Court shall, after ordering the service of the application upon the Attorney General and granting him at least seven days to reply and after having heard oral submissions from the accused and the Attorney General, if it considers this necessary, decide upon the court in which the accused is to be tried and the accused shall be tried in accordance with the decision of the Criminal Court:

Provided that an application in terms of this paragraph may only be filed once in the course of any proceedings:

Provided further that persons who, on the date of the coming into force of this sub‑article, are awaiting trial in the Criminal Court further to a direction given in terms of sub‑article (2) may, notwithstanding the other provisions of this paragraph, file an application in the said court in terms of this paragraph by not later than the 30th April 2015:

For the purposes of this sub‑article the words "the conclusion of the inquiry" include any conclusion of an inquiry referred to in article 407 of the Criminal Code.

(2B) Where, upon conviction by the Criminal Court as provided in sub‑article (2)(a), after considering all the circumstances of the case including the amount and nature of the drug involved, the character of the person concerned, the number and nature of any previous convictions, including convictions in respect of which an order was made under the Probation Act and the provisions of the Fourth Schedule, the court is of the opinion that the punishment provided for in sub‑article (2)(a) would be disproportionate it may, giving reasons, apply the punishment provided in sub‑article (2)(b).”

21. Article 29 of the Ordinance reads as follows:

“Where in respect of a person found guilty of an offence against this Ordinance, the prosecution declares in the records of the proceedings that such person has helped the Police to apprehend the person or persons who supplied him with the drug, or the person found guilty as aforesaid proves to the satisfaction of the court that he has so helped the Police, the punishment shall be diminished, as regards imprisonment by one or two degrees, and as regards any pecuniary penalty by one‑third or one‑half.”

22. Article 31 of the Ordinance reads as follows:

“Notwithstanding that the Attorney General has directed in accordance with the provisions of article 22(2), that a person be tried in the Criminal Court, he may, at any time before the filing of the bill of indictment or at any time after filing the bill of indictment before the jury is empanelled, and with the consent of the accused, direct that that person be tried before the Court of Magistrates, and upon such direction the Court of Magistrates as a court of criminal judicature shall become competent to try that person as if no previous direction had been given. Where the Attorney General has given such new direction after the filing of the bill of indictment, the registrar of the Criminal Court shall cause the record to be transmitted to the Court of Magistrates, and shall cause a copy of the Attorney General’s direction to be served on the Commissioner of Police.”

COMPLAINTS

23. The applicant invoked Articles 6 and 7 of the Convention complaining about the discretion of the AG to decide in which court to try an accused and the consequent effects this had on punishment.

THE LAW

24. The applicant complained under Article 7 of the Convention about the lack of foreseeability of the penal law, in so far as the decision of the AG was unpredictable and in consequence the punishment aleatory. He relied on the case of Camilleri v. Malta (no. 42931/10, 22 January 2013). He also complained under Article 6 about a lack of equality of arms in so far as one of the parties (the AG) who was not impartial took a binding decision on the trial, namely that concerning the range of punishment, which could not be remedied by the courts. The applicant also relied on Articles 6 and 7 of the Convention which, in so far as relevant, read as follows:

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

25. The Court notes that the complaints in the present case are directed at the defects arising out of the Dangerous Drugs Ordinance. The same complaint in respect of that Ordinance was examined in Seychell v. Malta (no. 43328/14, 28 August 2018) where the Court followed its findings in Camilleri (cited above, in connection with the Medical and Kindred Professions Ordinance) and concluded for a violation of Article 7 in relation to the unfettered discretion of the AG to choose the trial court and therefore the applicable punishment, and found that it was not necessary to examine the complaint under Article 6 of the Convention.

26. In Seychell (§ 48), as well as in Camilleri (§ 42), both cited above, the Court found that the law did not determine with any degree of precision the circumstances in which a particular punishment bracket applied. Reiterating its findings in Camilleri, in the most recent Seychell judgment the Court considered that:

“50. ... An insoluble problem was posed by fixing different minimum (and maximum) penalties. The Attorney General had in effect an unfettered discretion to decide which minimum (and maximum) penalty would be applicable with respect to the same offence. The decision was inevitably subjective and left room for arbitrariness, particularly given the lack of procedural safeguards. ...

51. Moreover, the domestic courts were bound by the Attorney General’s decision as to which court would be competent to try the accused. The Government acknowledged that Article 21 of the Criminal Code ‑ which provided for the passing of sentences below the prescribed minimum on the basis of special and exceptional reasons – was not applicable to the present case... . Thus, at the relevant time, a lesser sentence could not be imposed, despite any concerns the judge might have had as to the use of the Attorney General’s discretion (ibid.).

In the light of the above considerations, the Court concludes that the relevant legal provision at the material time (prior to recent amendments in the light of the Camilleri judgment, cited above) failed to satisfy the foreseeability requirement and provide effective safeguards against arbitrary punishment as provided for in Article 7.”

27. The Court notes that under the Supervision of the Committee of Ministers, in the execution phase related to the judgment in Camilleri, the national authorities undertook changes to the relevant laws, namely, the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance, by means of Act XXIV (see Relevant domestic law, paragraph 20 above). In particular, quite apart from the fact that the amended laws provided guidelines to be followed by the AG in future cases, an additional provision, specifically, Article 22 (2B) in relation to the Dangerous Drugs Ordinance, pertinent to the present case, provided the criminal courts with the power to apply a different punishment bracket, namely that applicable to proceedings before the Court of Magistrates if, bearing in mind all the circumstances, the punishment applicable before the Criminal Court would have been disproportionate. Thus, contrary to that claimed by the applicant (see paragraph 24 above) the decision of the AG was no longer binding, and could be remedied by the courts. It follows that the domestic courts, which were no longer bound by the AG’s discretion, constituted a procedural safeguard against the latter’s discretion, irrespective of whether the AG’s discretion was applied pre (as in the present case) or post amendments.

28. Indeed the Court notes that the new provisions entered into force in August 2014, at a time when the applicant in the present case was going through appeal proceedings. At that stage, the Court of Criminal Appeal considered such favourable amendments and exercised its power to assess whether the situation was such to merit the more lenient punishment bracket but decided, giving reasons, that it was not the case (see paragraph 11 above). The Court finds nothing arbitrary in the Court of Appeal’s detailed conclusions, thus despite the outcome of that assessment, it considers that the applicant in the present case had effective safeguards against the imposition of an arbitrary punishment as provided for in Article 7 of the Convention.

29. The Court also notes that the applicant committed the crime at issue prior to 2003, at a time when he could not have known the exact punishment bracket which applied to him. At that time he could only know that, taking into account both punishment brackets, the minimum was six months and the maximum life imprisonment. Now, in the present case, following the above‑mentioned amendments which were taken into consideration in the applicant’s case, the Court of Criminal Appeal could apply any of the two punishment brackets, that is, his punishment could have varied between six months to life imprisonment and thus corresponded to his knowledge at the time of the commission of the crime, and thus no issue of foreseeability arises in the instant case.

30. It follows that in the present case, in view of the 2014 amendments, it cannot be said that the law which applied to the applicant failed to satisfy the foreseeability requirement or to provide effective safeguards against arbitrary punishment as provided for in Article 7. For the same reasons no issue arises under Article 6 of the Convention.

31. Accordingly, the applicant’s complaints are inadmissible as manifestly ill‑founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 February 2019.

Stephen PhillipsBranko Lubarda
RegistrarPresident

 

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