In a judgement delivered on 6 July, Magistrate Elaine Rizzo reiterated an important legal principle that the accused should benefit from the more favourable version of an amended law.
The ruling was handed down in the case against Nauris Gunars Kaluga, a Latvian national, residing in Marsaskala, who was acquitted of all drug-related charges.
The most legally significant part of the judgement concerns the definition of cannabis, following Act LXVI of 2021. The defence argued that the substances seized had an average 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 package addressed to a third party at the accused’s residence in Marsaskala. The subsequent police search uncovered suspected 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 cocaine the night before.
Act LVXI of 2021 amended the Dangerous Drugs Ordinance so that the definition of cannabis expressly excluded cannabinoid products containing no more than 0.2% tetrahydrocannabinol (THC). However, another amendment took place with the introduction of Act XII of 2025. The court argued that the THC percentage not exceeding 0.2%, could have constituted a crime on the day the accused was arrested, 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 legislative change in this case lies in the court’s application of the principle lex mitior, namely that where the criminal law changes while proceedings remain pending, the accused is entitled to benefit from the law which is more favourable to them.
The court referred to the judgement the police vs Juanita Fenech, which had referred to Article 7 of the European Convention, 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 legislation enacted before the final judgement, 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 average THC content lower than 0.2%. The court consequently treated them as falling outside the current definition of cannabis.
The remaining charge concerned simple possession of cocaine. Here, the prosecution encountered a different evidential problem. According to the judgement, no further evidence was produced to substantiate 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 previous day. Yet the accused’s formal police statement contained a direct denial when he was specifically asked about cocaine.
The court therefore identified a significant evidential difficulty. Even assuming that the accused had admitted consuming cocaine on occasion, there was insufficient evidence establishing when that consumption occurred. 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 formal statement did not record when the alleged comments were made, their circumstances, whether they were spontaneous or responses to police questioning, or whether they occurred before or after he indicated that he wished to consult a lawyer. 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.
This article may also be accessed on MaltaToday.
