by AB&A Legal
In March 2020, Legal Notice 72 of 2020, entitled ‘Enforcement of Directions relating to Quarantine (Amendment) Regulations, was published. This Legal Notice sought to revise the pecuniary punishment to be imposed on persons who fail to adhere to COVID-19 measures including any obligatory quarantine periods. Since the coming into force of this Legal Notice, any person who fails to adhere to such measures and/or any obligatory period of quarantine is guilty of an offence and liable to the payment of a penalty of three thousand Euro (€3,000) for each and every occasion that the quarantine period is breached. For clarity’s sake, Regulation 2 of Legal Notice 72 of 2020 holds as follows:
“Any person who fails to abide by the provisions of these regulations shall be guilty of an offence and shall, on conviction, be liable to the payment of a penalty of three thousand euro (€3,000) for each and every occasion that the quarantine period is breached.”
The oddity behind this provision revolves on the term ‘penalty’ and this was precisely the issue that led to the acquittal of the defendant in a tribunal hearing before the Commissioner of Justice which took place on the 27th of April 2021. This decision, in the names of ‘LESA v. Mario Attard’, could very well create a ripple or domino effect on future tribunal cases with comparable merits and grounded on the same charges.
The afore-cited Regulation 2 of Legal Notice 72 of 2020 makes it amply clear that it is creating a criminal offence. An offence in Malta can either take the form of a ‘crime’ or alternatively a ‘contravention’. In terms of Article 7 of the Maltese Criminal Code, the pecuniary punishments that may be meted out for crimes and contraventions respectively are a fine (multa) and a fine (ammenda). The question therefore remains; the term penalty – used in Regulation 2 of Legal Notice 72 of 2020 – falls under which category of punishment? Is it a fine (multa) of a fine (ammenda)?
To this day, this remains a mystery. What is certain, however, is that nowhere in the Maltese Statute book is the concept of penalty recognised as a punishment that may be meted out for a finding of guilt and this in itself creates legal uncertainty.
In the afore-cited case of ‘LESA v. Mario Attard’ the defendant argued that since the term penalty is not under Maltese law recognised as a form of pecuniary punishment awardable for offences, the fundamental principle of nulla peona sine lege – literally implying ‘no penalty without a law’ – safeguarded by both article 39(8) of the Maltese Constitution and Article 7 of European Convention of Human Rights (ECHR), was violated.
The Commissioner for Justice upheld this plea and proceeded to acquit the defendant Mario Attard.
What changes to the law this decision is set to bring forth, is yet to be seen.
Paralegal Jacob Magri assisted the defendent before the Commissioner of Justice.