The legal framework governing the judicial process for individuals caught in possession of minimal amounts of drugs for personal use is outlined in the Drug Dependence (Treatment not Imprisonment) Act, Chapter 537 of the Laws of Malta, which came into effect on 15 April 2015. As its name suggests, the idea has been to focus on rehabilitation and treatment for accused persons with drug dependence problems, rather than treating these cases with typical criminal proceedings and resorting to imprisonment. The amendments propose an increase in the threshold quantities of specific drugs outlined in the below-mentioned Schedules.
The Fourth Schedules of both the Medical and Kindred Professions Ordinance and the Dangerous Drugs Ordinance, Chapters 31 and 101 of the Laws of Malta respectively, establish a set of guidelines in determining the court in which persons accused of offences related to said ordinances shall be tried in.
Chapter 31 of the Laws of Malta provides that the following amounts are indicative that a person should not be referred for trial before the Criminal Court:
- ecstasy: less than 300 tablets (proposed increase to 500 tablets)
- LSD: less than 300 squares
- amphetamine: less than 300 grams
- ketamine: less than 150 grams
Similarly, Chapter 101 of the Laws of Malta also provides amounts which are indicative that a person should not be referred for trial before the Criminal Court:
- heroin and cocaine: less than 100 grams (proposed increase to 200 grams)
- cannabis: less than 300 grams (proposed increase to 500 grams)
The forthcoming legislative changes aim to expand the range of cases heard by the Court of Magistrates rather than go for trial before the Criminal Court. It is crucial to grasp that the legislative intent is to alleviate the burden on the Criminal Court, dealing with substantial caseload and backlog. The proposed law does not imply, in any manner, that 500 tablets of ecstasy would be considered for personal use. This leads us to the purview of the Drugs Court.
Within the framework outlined in Chapter 537 of the Laws of Malta, the Court possesses the authority to issue a decree whereby it will assume the functions of a Drugs Court. This action follows a comprehensive process involving the consideration of submissions from both the accused and the prosecution, as well as the examination of any pertinent witnesses deemed necessary by the Court.
However, a number of conditions must be met:
- The quantity of drugs must not exceed the amounts listed in the above-mentioned Schedules.
- Any crime with which the accused is charged with is not punishable by a term of more than seven years imprisonment.
- The offence with which a person is accused of is committed during a period of drug dependence and is substantially attributable to the proved drug dependence of the accused.
- The offence against any law other than the drug laws with which the accused is charged with does not consist of a wilful offence against the person or of a crime committed whilst the accused was in possession of arms proper or with the use of fire or explosives.
- There are objective reasons suggesting that the accused is likely to be rehabilitated from drug dependence or has shown significant progress or effort to overcome the drug dependence problem.
Once the Court issues a decree to assume the functions of a Drugs Court, it will then proceed to refer the accused to the Drug Offenders Rehabilitation Board. The Board is vested with various powers, including the authority to order the collection of blood and urine samples, to obtain information, assistance or expert advice from any Government department or agency, and to issue orders or recommendations which potentially restrict the freedom of movement, for the treatment or rehabilitation of individuals facing drug dependence problems.
If, within a period of eighteen months from the accused being referred to it, the Board determines that the accused is either entirely free from drug dependence or has significantly overcome it, it shall report this information to the Court. This period may be extended in exceptional circumstances. Subsequently, the accused will be referred back to the Court.
In cases of conviction, the Court holds the discretion to refrain from imposing a minimum mandatory imprisonment term or from dismissing the application of a probation order or suspension of a prison term related to the offence for which the accused has been found guilty. However, this discretion is contingent upon the Court being convinced, on a balance of probabilities, that the committed offence can be primarily attributed to the drug dependence of the accused.
The proposed amendments do not allow an increase in the possession of drugs. Instead, they grant flexibility to the Courts, enabling them to opt for rehabilitative measures in situations deemed genuine, especially when there is potential for the accused, struggling with drug addiction, to undergo successful rehabilitation. Additionally, the amendments seek to expedite the initiation and progression of cases, allowing more matters to be promptly addressed within the Court of Magistrates, as opposed to following the compilation of evidence procedure with the anticipation of a trial by jury.
This article was penned by Dr Andrea Mugliett, Associate at Vincent Micallef & Associates.