Issue link: https://maltatoday.uberflip.com/i/1546553
12 maltatoday | SUNDAY • 13 SEPTEMBER 2026 LAW MALCOLM MIFSUD Mifsud & Mifsud Advocates Court must apply more favourable version of legal amendments for the accused IN a judgment delivered on 6 July, Magistrate Elaine Rizzo re- iterated an important legal prin- ciple that the accused should benefit from the more favoura- ble version of an amended law. The ruling was handed down in the case against Nauris Gu- nars Kaluga, a Latvian nation- al, residing in Marsaskala, who was acquitted of all drug-relat- ed charges. The most legally significant part of the judgment concerns the definition of cannabis, fol- lowing Act LXVI of 2021. The defence argued that the sub- stances seized had an aver- age THC content below 0.2%, meaning that after the 2021 legislative amendments, they no longer fell within the legal definition of cannabis. The prosecution did not contest this proposition. The proceedings concerned drugs discovered following the interception of a pack- age addressed to a third party at the accused's residence in Marsaskala. The subsequent police search uncovered sus- pected cannabis products, cash amounting to €19,850, scales, sealing equipment and other items. The police on the scene also found €150 worth of notes rolled up in a straw-like shape, which on arrest, the accused said he had used to snort co- caine the night before. Act LVXI of 2021 amended the Dangerous Drugs Ordi- nance so that the definition of cannabis expressly excluded cannabinoid products contain- ing no more than 0.2% tetrahy- drocannabinol (THC). Howev- er, another amendment took place with the introduction of Act XII of 2025. The court argued that the THC percent- age not exceeding 0.2%, could have constituted a crime on the day the accused was arrest- ed, which was on 19 September 2023 and/or in the previous months. However, the court also noted that with the most recent definition that was not the case anymore. The significance of the legis- lative change in this case lies in the court's application of the principle lex mitior, name- ly that where the criminal law changes while proceedings re- main pending, the accused is entitled to benefit from the law which is more favourable to them. The court referred to the judgment the police vs Juanita Fenech, which had referred to Article 7 of the European Con- vention, which encompasses not only the prohibition against the retrospective application of harsher criminal law, but also the retrospective application of a more lenient criminal law. Where the law in force at the time of the offence differs from the current criminal legisla- tion enacted before the final judgment, the provision most favourable to the accused must prevail. This was stipulated in the case Ocalan vs Turkey. On the evidence before the court, the substances analysed by court-appointed expert Godwin Sammut had an aver- age THC content lower than 0.2%. The court consequently treated them as falling outside the current definition of can- nabis. The remaining charge con- cerned simple possession of cocaine. Here, the prosecution encountered a different evi- dential problem. According to the judgment, no further ev- idence was produced to sub- stantiate the charge, and the prosecution relied essentially upon statements attributed to the accused himself. Police testimony referred to cash found rolled up "like straws". Inspector Marshal Mallia also testified that the accused had apparently stated that he had used such cash to consume cocaine on the pre- vious day. Yet the accused's formal police statement con- tained a direct denial when he was specifically asked about cocaine. The court therefore identified a significant evidential difficul- ty. Even assuming that the ac- cused had admitted consuming cocaine on occasion, there was insufficient evidence establish- ing when that consumption oc- curred. The charge specifically related to 19 September 2023 and/or the preceding months. An unspecified admission of past cocaine use could not, by itself, establish possession within that charged timeframe. The court was also critical of the circumstances surrounding the alleged oral admission. It noted that the accused's for- mal statement did not record when the alleged comments were made, their circumstanc- es, whether they were sponta- neous or responses to police questioning, or whether they occurred before or after he in- dicated that he wished to con- sult a lawyer. The court there- fore considered it unsafe and unsatisfactory to rely upon that testimony to convict. The court accordingly ac- quitted Kaluga of the cocaine charge as well. The court therefore considered it unsafe and unsatisfactory to rely upon that testimony to convict. The court accordingly acquitted Kaluga of the cocaine charge as well