The Attorney General’s discretionary powers to decide whether a case should go before a magistrate or a jury, which significantly varied punishment, amounted to a breach of human rights, a judge ruled.

Martin Dimech, 50, of Żejtun and Joseph Lebrun, 54, of Marsascala, argued through their lawyers – Franco Debono and Veronique Dalli – that the Attorney General’s discretion was unfair and breached their rights.

They pointed out that when the Attorney General decided that a person should be tried in the superior courts, punishment could vary from four years in jail to life imprisonment.

In contrast, one could get a maximum of 10 years or a minimum of six months if one appeared before the Magistrates’ Court.

Mr Justice Anthony Ellul ruled yesterday it was not correct for the Attorney General to decide in which court the accused should be tried. People who were charged for the same crime would end up being given different punishments without the courts having any discretion.

The Attorney General issued the charges against the accused and, at the same time, also set the parameters in terms of time served in jail, the judge said.

The principle of rule of law and a fair trial should not permit this interference in the administration of justice, he concluded.

Mr Lebrun had been arraigned in 2005 and accused of association to import and traffic seven kilos of heroin. He pleaded not guilty.

He was acquitted by the Magistrates’ Court that same year due to lack of evidence, but was then re-arraigned and again cleared after the court concluded that his voice did not feature in a recorded telephone conversation supposedly linking him to the alleged crime.

In 2011, Mr Lebrun was awarded compensation, amounting to €6,000, after it was established that the court proceedings had been unjustifiably prolonged.

The Constitutional Court also declared that his rights were breached when he did not have access to a lawyer during the police investigation.

Mr Dimech stands charged with trafficking just under a kilo of heroin in March 2009.

The prosecution alleged he hid the drugs, which were 35 per cent pure, behind fridges in a garage.

The drugs, worth more than €45,500, were allegedly kept by the accused after he was paid €11,600 by another person.