A man who had been jailed and fined for cultivating drugs was awarded €1,000 in moral damages and €1,700 to cover costs after the European Court of Human Rights found he had been subjected to arbitrary punishment.

In March 2008, Anthony Seychell was jailed for 12 years and fined €25,000 by the Criminal Court after a trial by jury found him guilty of cultivation and aggravated possession (not for his exclusive use) of cannabis. The Court of Appeal confirmed the sentence a year later.

Mr Seychell, who suffered from chronic depression and severe back pain, subsequently sought redress in the Constitutional Court, challenging the Attorney General’s discretion to decide which court should try an accused, insisting his right to a fair trial had thus been violated.

He later asked to make an additional plea under a provision of the European Human Rights Convention referring to arbitrary punishment. However, the court rejected this latter plea on the grounds that the compilation of evidence and submission of pleadings had already been made.

Mr Seychell’s first plea was eventually also rejected, and the decisions were confirmed even after he appealed.

At the time, the Attorney General was empowered to decide before which court an accused facing drug-related charges should appear and thus what punishment he would face. This changed in 2014 after the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance were amended.

He could not have had any doubt that he would be tried by jury

Mr Seychell eventually took his case to the European Court of Human Rights, complaining that the Attorney General’s discretion to decide in which court to try an accused had breached his fundamental right against arbitrary punishment.

The Strasbourg-based court found that the Attorney General enjoyed 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.

“Such a decision could not be seen only or mainly in terms of abuse of power, even if – as the government suggested, without substantiating their view – it might be subject to judicial review”.

It therefore concluded there were no effective safeguards against arbitrary punishment as required by the European Convention of Human Rights.

In a dissenting opinion, Judge Geoffrey Valenzia, who formed part of the panel of judges since Chief Justice Emeritus Vincent De Gaetano was unable to sit on the case, said he disagreed with the conclusion that Mr Seychell could not have known, even with appropriate legal advice, which court he would be tried in and therefore the consequences his actions could entail.

“For those who are familiar with Maltese law and case-law (and – besides ignorance of the law being no excuse – the applicant was no stranger to the drugs law) one does not need rocket science to know that cultivating cannabis on an industrial scale (which is why he was charged with aggravated possession, the substance not being for his own exclusive use) would entail trial by jury before the Criminal Court and not being summarily tried before the Magistrates’ Court.

“In this case, the applicant could not have had any doubt that he would be tried by jury. Article 7 [of the European Human Rights Convention] has to be applied to the concrete and particular circumstances of the case and not in a general way. Such cases of industrial-scale cultivation of drugs could even be considered as res ipsa loquitur [the thing speaks for itself] cases, just like the crime of murder, which is never tried summarily,” the judge said.

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