Issue link: https://maltatoday.uberflip.com/i/201600
12 News maltatoday, WEDNESDAY, 30 OCTOBER 2013 Prohibition 'not the way to tackle drugs' – defence lawyer Legal aid lawyer Joe Ellis has slammed Malta's drug legislation as 'archaic' and 'primitive', calling for a root and branch reform of the law. In court on Monday, Ellis argued that his clients – two Sicilians aged between 18 and 21 who were caught smoking a joint in Paceville last Saturday – would have probably fared better had they been caught in Iran rather than Malta. The comparison is clearly exaggerated, given the possibility of death by hanging for drug charges in the Islamic state. Ellis also went one step further, claiming that "all European prime ministers" have smoked cannabis (presumably this was a reference to British PM David Cameron's recent admission to having smoked the drug – though it remains unclear which other European PM is known to have done the same). But while both statements may have arguably stretched the parameters of the truth, few would deny that the details of the case in which Ellis made these remarks are certainly eyebrow-raising in their own right. Emmanuele Giunta was charged with drug trafficking. On closer scrutiny, however, it turns out he committed this crime through the simple act of passing a joint (i.e., a rolled cigarette containing cannabis) to a friend, without realising that Maltese legislation makes no distinction between sharing of drugs and trafficking. As a result, Giunta faced a possible maximum sentence of 10 years in prison – the sort of sentence one would associate with violent, pathological crime… even if no evidence was forthcoming that he had sold any quantity of illicit drugs to anyone else. Individual details that emerged seem almost too bizarre to be taken seriously. Giunta was charged with 'trafficking' 0.4g of cannabis – an amount so small, it is debatable whether a street market value can even be attached to it at all. Reactions by decriminalisation campaigners varied between surprise, incredulity and outright disbelief. Some even assumed that the court report was in fact a joke, of the sort that normally gets printed on 1 April. Even the prosecution appeared to voice doubts as to the penalties while presenting the case in court. Prosecuting inspector Johann Fenech told the court that the two Sicilians, both of Modica, had been apprehended by the police in Paceville last Saturday night. The officer stated that both men admitted to the charges, and opined that a prison term was definitely not the ideal conclusion to the case. The two men were fined €500 apiece. Giunta was separately sentenced to six months suspended for two years. Anomalous though this case may seem, it nonetheless appears to be perfectly typical of the type of prosecution Joe Ellis has grown accustomed to handling. And while Malta's drug regime may still be less draconian than Iran... it is not quite comparable to any other European member state, either. Contacted by MaltaToday, Ellis confirmed that this sort of 'importation' charge is much more common than one would think. "There PHOTOGRAPHY BY RAY ATTARD RAPHAEL VASSALLO Around 150 people gathered in protest against Daniel Holmes's 11year sentence for cultivating cannabis in Valletta last Saturday was a case recently which involved traces of heroin… an amount so small that the chemist [who identified the drug in court] couldn't even quantify its weight." In most other jurisdictions prosecuting such cases would be considered a waste of police time and resources. "It is ridiculous," Ellis said. "In a recent discussion before a parliamentary select committee, an Apogg social worker claimed that 'cocaine was freely available at wedding receptions'. Yet the police tend to prosecute minute quantities of drugs which most other countries are in the process of decriminalising." Asked to specify the precise problem with the law in its current form, Ellis pointed towards the unreasonable margin of discretion allowed by the law to both the Attorney General, and to the magistrate/ judge/jury depending on how the case is treated. "The AG has full discretion to decide whether a case gets heard in the magistrate's court, where the maximum penalty is 10 years, or the criminal court where the suspect may face life imprisonment." The Giunta case, he added, could just as easily have been heard before judge with the possible maximum life penalty, had the AG so decided. Elsewhere, the sheer discretion allowed to magistrates often results in bizarre contradictions and discrepancies between sentencing policies. "It varies from magistrate to magistrate," Ellis said. This in turn may explain numerous discrepancies that have emerged from in recent cases; for instance, how a man charged with cultivation of cannabis [Joseph Saliba from Sannat] was acquitted after he 'cooperated with the police'… while Daniel Holmes, charged with an identical crime, received close to the maximum sentence despite also cooperating in the exact same way. The problem, Ellis emphasised, returned is inscribed into the law itself. "The law needs to be revised from scratch. It is time we start looking at other models," he said, pointing towards Portugal, where decriminalisation resulted in a drop in drug use, as a possible model. "Prohibition is not working," he added. "It is not the way to control the drug situation." "On 7 March 2008, the Magistrate, Dr Edwina Grima ordered the police to return some of Daniel's property to him by 20 May 2008. This was never done. We questioned it many times. Why have the police responsible in the case not been charged with contempt of court? 4. Holmes denied chance to defend himself Holmes' parents flag anomalies in son's arrest, trial On the eve of the final appeal judgement, due to be delivered tomorrow, the family of a Welshman jailed for 10 years and fined €23,000 for cannabis cultivation have claimed that the case was prejudiced by numerous anomalies which have never been explained. Mel Holmes, whose son Daniel was convicted of cannabis cultivation in 2011, pointed towards a number of inconsistencies surrounding the case: including that the indictment was filed late, without any extension requested by the office of the prosecution and that the accused was denied a lawyer at all stages of interrogation. But while other (mostly local) suspected drug traffickers have had their charged dropped as a result of this human rights violation, the lack of legal assistance had no bearing on the sentence in this particular case. In a letter to the media on Tuesday, Mel Holmes raised five questions concerning his son's conviction. 1. Legal assistance denied "Daniel's statement, used by the police to get him indicted, was compiled from three separate interrogation sessions during which he was denied a lawyer with the phrase, "Get real, this is not TV"," Mel Holmes said. "We have asked every lawyer to tackle this point – none did!" Referring to the case of Alvin Pritivera – whose conviction for drug trafficking was overturned by the Legal aid lawyer Joe Ellis slammed Malta's drug legislation, saying two teenagers caught smoking marijuana last week would have "fared better in Iran" court of appeal, over lack of legal assistance – and also Joseph Saliba, who received a suspended sentence over the same changes (i.e., cultivation), Mel Holmes demands to know why his son was not acquitted on the same grounds. 2. Indictment filed late "On 13 September 2006 the Attorney General asked for a 15 day extension as the time to file the indictment had expired," Mel Holmes said. "Such extension was never granted, but the case proceeded anyway. Later Daniel was asked to sign a waiver without being told what it was. He refused anyway, as his lawyer was not present to explain it. We found out later what they had tried to get him to sign. Again, no lawyer has pressed this point. Why did the case proceed, when the AG had failed to respect Daniel's rights to a fair trial in a reasonable timeframe? 3. Confiscated property never "Daniel asked every lawyer (Dr Said, Dr Galea, Dr K Mompalao, Dr K Grima) to enable him to make a fresh legal statement. On 8 January 2009, as he still had never been asked to take the stand in his defence, Daniel sent a written statement to Dr Grima asking that either he be allowed to take the stand and answer the allegations against him or this statement should be submitted to the court. Daniel and I have asked Dr Grima to put us on the stand in order to demonstrate his reformed nature. Neither was ever done. Mel Holmes questions why the accused was never allowed to testify in his own case. 5. Prison suicide cover up Lastly, Holmes raises questions over the apparently uninvestigated suicide, in an isolation cell in Coradino's notorious Division Six, of Barry Lee: imprisoned over the same charges of cultivation along with Daniel Holmes. "Unfortunately, Barry Lee did not get the level of support we were able to give our son, and subsequently demonstrated the CCF's ineptitude in this matter by, allegedly, taking his own life," Mel Holmes said. "Why was the UK coroner's office denied access to any information about his death, and denied the courtesy of being allowed to come to Malta to investigate for themselves?" A final ruling in Daniel Holmes' appeal is expected tomorrow, 31 October.