The Constitutional Court declared today that the discretion enjoyed by the Attorney General to decide whether drug cases should be heard before the Magistrates' Court or the Superior Courts was a breach of human rights and the right for a fair trial for the accused.

In a landmark judgement, the court observed that the Attorney General was also prosecutor, and his discretion to decide whether cases were heard by the lower or the superior courts had an impact on the punishment which an accused could receive, once convicted.

The declaration was made in two judgments in cases filed by Joseph Lebrun and Martin Dimech, who are both facing accusations of drug trafficking.

Their lawyers, Franco Debono and Veronique Dalli, took the matter to the Constitutional Court, where he argued that the Attorney General's discretion was wrong. He noted that when the AG decided that a person should be tried before the superior courts, the potential maximum sentence was life imprisonment, while the minimum on conviction was four years imprisonment.

Before the Magistrates' Court, the maximum on conviction was 10 years imprisonment, and the minimum was six months. 

Mr Justice Anthony Ellul said that while the criminal court had sentencing parameters, the Attorney General had been given wide discretion to decide which minimum sentence should apply when there was a conviction. This discretion had been given even though the Attorney General was the adversary of the accused.

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

Lawyer Franco Debono said he would appeal as the court, while finding a breach of human rights, had not offered a remedy to the accused.