Constitutional Court again slams AG’s unfettered discretion

The Constitutional Court ruled that the Attorney General’s unfettered discretion to decide in which court an accused could be brought to trial and consequently which punishment would be applicable, violated the fundamental rights of Rafal Zelbert, a man charged with trafficking 443 grams of cocaine.

Zelbert is facing charges of conspiring to traffic cocaine, importation of 443.68 grams of cocaine and possession of diazepam (valium) in circumstances showing it was not for his personal use.

However, on 17 December last year, the Criminal court upheld the accused’s request to file a constitutional reference submitting that the discretion of the Attorney General to decide in which court he could be brought to trial and consequently which punishment would be applicable was contrary to the impartiality requirement of Article 6 of the Human Rights Convention.

The accused argued he was effectively being prejudged by a decision made by one of the parties to the trial.

Zelbert, noted that the law giving such discretion to the Attorney General precluded the application of Article 21 of the Criminal Code to the offences with which the applicant was charged.

Thus, this decision was irrevocable with no right of appeal and was not subject to any judicial review. Therefore, the ability of the Attorney General, as public prosecutor, and also as one of the parties in the trial to make a binding decision regarding the trial created an imbalance which could not be rectified by the courts.

Moreover, the law did not provide for any guidance on what would amount to a more serious offence or a less serious one.

The Constitutional Court noted that there existed no guidelines which could aid the Attorney General in taking such a decision.

Hence, the law did not determine with any degree of precision the circumstances in which a particular punishment bracket applied.

The accused observed that there was uncertainty of the law since the discretion of the Attorney General had not been exercised on the basis of objective criteria established by law. Any criteria used by the Attorney General were, in any event, not published, and therefore such discretion was absolute.

The Court ruled that there is no doubt that the laws of Malta provided for the punishment applicable in respect of the offence with which the applicant was charged. In fact, they provided for two different possible punishments, namely a punishment of four years to life imprisonment in the event that the applicant was tried before the Criminal Court, or six months to ten years if he was tried before the Court of Magistrates.

While it is clear that the punishment imposed was established by law and did not exceed the limits fixed by the law, it remains to be determined whether the law’s qualitative requirements, particularly that of foresee-ability were satisfied, regard being had to the manner of choice of jurisdiction, as this reflected on the penalty that the offence in question carried.

The law did not make it possible for the applicant to know which of the two punishment brackets would apply to him. He became aware of the punishment bracket applied to him only when he was charged, namely after the decision of the Attorney General determining the court where he was to be tried.

While it may well be true that the Attorney General gave weight to a number of criteria before taking his decision, it is also true that any such criteria were not specified in any legislative text or made the subject of judicial clarification over the years.

The Attorney General had in effect an unfettered discretion to decide which minimum 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.

Mr Justice Tonio Mallia concluded that the relevant legal provision failed to satisfy the foresee-ability requirement and provide effective safeguards against arbitrary punishment. “It follows that there has been a violation of Article 7 of the Convention”, Judge Mallia said.

The constitutional court ordered that a copy of the judgement is inserted in the acts of the case before the Criminal Court.