Issue link: https://maltatoday.uberflip.com/i/1523374
8 maltatoday | SUNDAY • 30 JUNE 2024 LETTERS & LAW Letters to the Editor Law Report Can temporary road signs be removed? CAN Infrastructure Malta make sure that whenever contractors finish road- works, the temporary signs they put up to redirect traffic are then removed? This should be a contractual condition and if contractors fail to adhere to it they should be fined. If this already is a contractual condition then the authorities must make sure it is enforced because it is confusing for motorists, especially those who are on- ly visiting a locality and thus not privy to the reality on the ground, to have tempo- rary signage still in place although works would have finished. L. Spiteri Birkirkara Prime Minister's support for Metsola candidature IT was good seeing the Maltese Prime Minister express support for Roberta Metsola's candidature to serve a second term as European Parliament president. Robert Abela did what is expected of any Maltese prime minister in these circum- stances even though he may not agree with everything Metsola has said or done. But in showing support, Abela should have also explained himself better to his own elec- torate as to why he was acting in this way. It is understandable that the Labour Party's grassroots feel betrayed by Abela's actions because throughout the election campaign Metsola had been a prime target of the PL. At one point, Abela had even said Metsola used her power to satisfy her personal ego. The Prime Minister did try to explain his change of heart in the Sunday sermon that followed when he reiterated his dis- agreement with Metsola on key issues but insisted that as a Maltese national he supported her bid. But this explanation should have been made before Abela was even prompted by journalists on the matter. Politicians are entitled to make U-turns and in some instances, they are also a sign maturity but whenever they do so they have to make sure that these are explained well otherwise people will be confused. In this case, many were left ask- ing themselves whether the Metsola sup- ported by Abela now was the same Met- sola derided by Labour as a power-hungry individual only interested in fanning the flames of war. J. Mercieca Mosta IN a landmark decision, the Constitu- tional Court on 24 June 2024 declared a regulation imposing a 55% penalty on travellers carrying over €10,000 in cash as unconstitutional. The ruling states that the legal provi- sion "reduces the judicial process to a mechanical exercise." This judgment was handed down in a breach of rights case initiated by Igaale Ali Muuse, who was apprehended at Malta Internation- al Airport three years ago with €165,548 in cash. On 23 August 2021, Muuse was pre- paring to board a flight to Istanbul when a customs sniffer dog detected the sub- stantial amount of cash hidden in his suitcase, which was already loaded into the aircraft's cargo hold. Upon inspection, officials discovered the money, and Muuse was subsequent- ly arrested for failing to declare it in vio- lation of the Cash Control Regulations. He had previously declared that he was not carrying more than the €10,000 le- gally permitted without declaration. The following day, Muuse was ar- raigned and charged with breaching the Cash Control Regulations by not declaring the substantial excess cash. He initially pleaded not guilty. How- ever, as the proceedings continued and the prosecution presented its evidence, Muuse eventually changed his plea. In August 2022, he admitted to the charges after being given time to reconsider his position. The Magistrates' Court subsequently sentenced Muuse to a fine of €85,601. This sum represented a 55% penalty on the amount exceeding the €10,000 limit, in addition to a €50 fine. Muuse, believing this penalty to be excessive, appealed the judgment and requested a constitutional reference. He argued that the current regulations resulted in disproportionate punishment, legal arbitrariness, and a lack of judicial dis- cretion. The First Hall of the Civil Court, act- ing in its constitutional jurisdiction, in- itially dismissed Muuse's claims, stating that he had not suffered any breach of rights. However, Muuse appealed this decision, bringing the matter before the Constitutional Court. In a significant ruling on 19 June 2024, the Constitutional Court, composed of Chief Justice Mark Chetcuti and jus- tices Giannino Caruana Demajo and Anthony Ellul, upheld Muuse's appeal. The court declared that Regulation 3(5) (b) of the subsidiary legislation on cash control constituted a "disproportionate interference" with Muuse's right to the peaceful enjoyment of his private prop- erty. The court referred to EU caselaw, noting that these cash control meas- ures were derived from EU directives aimed at establishing a system of con- trols to prevent money laundering and the financing of terrorism throughout the bloc. The directives left it to each member state to introduce penalties that were "effective, proportionate, and dissuasive." Initially, Malta had imposed a 25% penalty on the total amount of unde- clared cash, along with the confiscation of any amount exceeding the €10,000 statutory limit. However, the law was amended in 2020, increasing the pen- alty to a mandatory 55% on the excess amount, plus a €50 fine. Additionally, the regulations stipulat- ed that when an individual was found carrying more than €30,000, the excess amount would be deposited with the Tax Commissioner for up to 90 days while police investigated the source of the funds. If any criminal activity was suspected, further criminal action could be taken against the individual. In Muuse's case, the authorities had ample time to investigate, but no additional action was pursued. The State Advocate argued that the cash control regulations were designed to prevent arbitrariness, ensuring that anyone caught with excess cash would be fully aware of the penalty they faced. However, the court disagreed, stating that such a severe penalty was unduly harsh, especially since it applied auto- matically whenever a traveller failed to declare extra cash at the airport. The court emphasised that while the regu- lation served as a deterrent and punish- ment, it reduced the judicial process to a mere formality, eliminating the court's ability to apply discretion based on the facts of each case. The Constitutional Court expressed concerns about the source of Muuse's money but ultimately held that the reg- ulation interfered in a disproportionate manner with his fundamental property rights. The court highlighted that each case presented unique circumstances, and punishment should be tailored ac- cordingly. Therefore, the regulation's one-size-fits-all approach was deemed incompatible with the principles of jus- tice and fairness. As a result, the court declared the reg- ulation unconstitutional and ordered that a copy of the judgment be sent to the Court of Criminal Appeal and the Speaker of Parliament for further ac- tion. This decision marks a significant shift in the legal landscape, reinforcing the importance of judicial discretion and proportionality in the application of penalties. It underscores the need for regulations that, while deterring unlaw- ful behaviour, also respect individual rights and provide a fair and just pro- cess for all. Court strikes down severe cash penalty as unconstitutional DR GIANLUCA CAPPITTA Partner Mifsud & Mifsud Advocates