Alleged drug trafficker wins third Constitutional case

Joseph Lebrun, 56 of Marsascala, today scored his third victory at the Constitutional Court after it ruled that the Attorney General's unfettered discretion to choose whether the accused is tried at the court of magistrates or face a trial by jury, violated the accused's rights.

Lebrun stands charged with association for the trafficking of heroin in 2005.

That year, the court ruled there had been not enough evidence to indict him of drug-trafficking since his voice had not been identified in telephone recordings.

Lebrun then accused the Attorney General of violating his right for a fair trial and the principle of equality of arms when the AG had ordered his re-arrest.

The Constitutional Court upheld the claim, ordering parliament to amend the law regulating the AG's requests for re-arrests.

Mr Justice Anthony Ellul ruled that today, the AG was not bound to give reasons to support a decision of how an accused should be tried. However, he pointed out, such decisions seriously impact the accused's future as it changed the parameters of punishment.

If tried by a Magistrate, an accused can be handed between a minimum of six months jail up to 10 years, but if the case is decided in a trial by jury the minimum changes to 4 years with a maximum of life imprisonment.

"With his unfettered discretion the AG is taking on the offices of both prosecution and judge, violating the accused's right to a fair hearing by an independent and impartial tribunal," the judge said.

This was the third win for Lebrun.

Following the court's order, parliament amended the law and gave the AG a month to request Lebrun's re-arrest.  This time the Court upheld the request and in May 2007, Joseph Lebrun was tried for drug trafficking.

However in September last year, Lebrun was awarded €6,000 compensation by the Constitutional Court which ruled that his case had been unjustifiably delayed for over six years.

He was also compensated the sum of €10 daily until the Attorney General takes a decision on how his case will be heard. The AG appealed judgement and a final judgement is expected on 6 April this year.

In comments to MaltaToday, defence lawyers Franco Debono and Veronique Dalli said Lebrun will be demanding the termination of proceedings in this case. "The case against Lebrun is rife with lost Constitutional cases, which makes the proceedings look more like a sieve than a solid case of drug trafficking," Debono said.

Meanwhile in similar proceedings, Judge Anthony Ellul also decreed that the rights of Martin Dimech, were violated in the same manner as Lebrun's.

In May 2009 Dimech, 53 of Zejtun, was charged with trafficking 925 grams of 35% pure heroin, having a street value of €42,561.96. In September last year Dimech's trial was suspended after he argued that it would be in breach of his human rights in light of two pending court cases. His case before the Constitutional Court claimed that the law empowering the Attorney General to decide whether a case should be heard by a magistrate or by a jury amounted to a breach of human rights. He is also before the European Court of Human Rights claiming his lack of legal assistance during the investigation also violated his rights.

Today Mr Justice Anthony Ellul ruled that the AG's right to decide where a case would be heard violates Dimech's fundamental rights.

The court ordered that both judgements are to be included in the proceedings of both cases.