The judgment rendered in the case of Insignia Cards Limited (C 54426) vs The Financial Intelligence Analysis Unit (FIAU) and the Attorney General was not surprising, as it followed a line of reasoning previously established in legal precedents such as Angelo Zahra vs Kummissarju tat-Taxxi Interni (decided on May 29, 2015), Federation of Estate Agents vs Direttur Ġenerali Kompetizzjoni (decided on May 3, 2016), and Rosette Thake noe vs Kummissjoni Elettorali (decided on October 8, 2018), among others.
Once more, the court declared the nullification of a hefty administrative fine (€373,670) imposed on Insignia Cards Limited by the FIAU. There is no question that the said amount of €373,670 lies within the parameters set out in Article 13 of Chapter 373 (Prevention of Money Laundering Act) and Regulation 21 of Subsidiary Legislation 373.01 (Prevention of Money Laundering and Funding of Terrorism Regulations).
Hence, where does the problem lie?
This decision was made based on the reasoning that administrative offenses with significant consequences should be treated as criminal offenses according to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. To provide some context, the Engel Criteria, established by the European Court of Human Rights, determine when an administrative charge should be considered criminal, as seen in the Engel and Others vs Netherlands case (1976). These criteria take into account the nature of the offense, severity of potential penalties, stigma associated with the offense, and the procedural safeguards in place. As a result, individuals facing administrative offenses with significant consequences should be granted similar procedural safeguards as those facing criminal charges.
In the specific case of Malta, Article 39(1) of the Constitution clearly states that criminal charges can only be handled by Courts presided over by Magistrates or Judges. On the other hand, disputes of a civil nature can also be addressed by Tribunals, as stated in Article 39(2) of the same Constitution.
Therefore, while regulatory authorities have the power to identify and prosecute offenses, the authority to impose sanctions lies exclusively within the jurisdiction of the courts. Against this background, the proposal to introduce harsh administrative fines in the proposed Health and Safety at Work Act is likely to encounter the same fate.
Fortunately, the proposed Health & Safety at Work Act has ample time to address and successfully resolve this matter.