Holmes files Constitutional appeal against 'unusually harsh' sentence, AG's Discretion

In a Constitutional Appeal filed against the Attorney General, the Commissioner of Police and the Director of the Gozo courts, Daniel Alexander Holmes has requested the highest court in the land to amend parts of a decision by the Civil Court in its Constitutional jurisdiction, which held that the Attorney General's discretion had exposed him to arbitrary punishment but not given him a remedy.

Holmes was arrested in June 2006, following a search in his Gozo apartment that resulted in the recovery of one kilogram of dried cannabis leaves and a small amount of cannabis resin.

Holmes admitted to five charges of drug possession, cultivation and trafficking in November 2011 and was handed a 10-year sentence and a fine of €23,000. Holmes admitted to all charges ahead of a trial by jury but insisted that the drugs were for his personal use.

Yesterday’s appeal, signed by lawyer Franco Debono, used a recent amendment to the law which allows a person accused to challenge the discretion of the Attorney General in deciding whether a case is to be heard by the criminal court - with a maximum sentence of life imprisonment - or the court of magistrates, with a maximum sentence of 10 years.

The appeal claims that the Attorney General’s sole discretion to decide whether a case is to be heard by a court of Magistrates or whether a Bill of Indictment is to be filed before the criminal court is in violation of the Constitution and the European Convention of Human Rights.

“The Attorney General’s power to make a binding judgment of a quasi-judicial nature before the start of the process, not on the basis of law, but based on [his] subjective, unfettered, discretion – a discretion which also binds the court, in itself, deprives the accused of the right to be heard by an impartial and independent tribunal,” it reads.

In his appeal, Holmes insists that the Gozitan legal aid lawyer who represented him in the initial stages was not specialised in criminal law. He argues that, in effect, the system did not ensure adequate legal assistance, in violation of his constitutional right to what is known as “secure protection of law”, which is also part of European Law.

Furthermore, it states that Holmes was denied access to his lawyer during interrogation and had no access to his case file, in violation of his fundamental human rights, as enshrined in the Constitution and European Law.

The appeal asserts that the punishment meted out to Holmes was “illegal, abusive and disproportionate” and therefore in violation of the European Convention.

Quoting from a judgement of the European Court, it said “a difference of treatment is discriminatory if it has no objective and reasonable justification” and lists 20 Maltese cases with reference to cultivation of comparable amounts of cannabis, where the punishment awarded varied from 6 to 18 years imprisonment.