Judge rejects smugglers’ request to delay payment of two €174,000 fines

Judge rejects smugglers’ request to delay payment of two €174,000 fines

A judge has rejected an application for an interim measure to delay payment of €174,000 in fines imposed on two recreational fishermen turned cigarette smugglers, after noting that the application was made a year after the fine was imposed.

Vincent Xuereb, 50, from Ghajnsielem, and Noel Vella, 42, from Rabat, Gozo, were arrested in February 2013 after an AFM Air Wing patrol vessel observed and filmed a large number of crates being transferred from the MV Golden Dawn, a vessel known for its history of illegal operations, to their vessel, the Sea Lioness, at sea.

An AFM craft then intercepted the Sea Lioness, discovering that its cargo consisted of thousands of contraband cigarettes.

In March 2018, Xuereb and Vella were convicted and sentenced to 18 months in prison, suspended for 2 years. In addition to the suspended prison sentence, the men were also fined €173,983.68 each, of which €57,994 was to be paid to customs, as well as ordered to confiscate all goods on board, and to pay an additional €23,000 in lieu of the vessel being confiscated by the court.

The sentence was upheld when their appeal against the conviction was dismissed in March 2023.

In March 2024, the men filed a constitutional lawsuit asking the court to declare both judgments void because they believed the two judgments were contradictory, creating legal uncertainty that they said violated their right to a fair trial.

In parallel with the constitutional case, Xuereb and Vella have asked the court to suspend the execution of their sentences until the constitutional case is decided.

In her decision to dismiss the stay application, Justice Doreen Clarke noted that what was being sought was in fact an interim measure. Interim measures are urgent measures that only apply where there is an imminent risk of irreparable harm, the judge said.

Justice Clarke noted that the application for interim relief was filed a year after the judgment against the two men was handed down. “This is a clear and unequivocal indication of the absence of urgency, which is a primary requirement and a fundamental consideration in the granting of interim relief,” the judge ruled.

Further, as per the original award, two-thirds of the fine was to be paid to the Registry of Courts in instalments, with the remaining third payable to the Director General of the Customs Department. While no arrangement was made for the latter to be paid in instalments, the court observed that the Department had also not initiated any legal action to recover the fine.

But Xuereb and Vella had filed a constitutional appeal to challenge the fines and had argued that if they were unable to continue to honour their payment agreements, the full amount of the fine would become due and could then be converted into a prison sentence in the event of non-payment. If that were to happen and their constitutional appeal was still pending, they could end up serving a prison sentence for nothing, if their constitutional complaint was ultimately upheld.

This argument was not accepted by the judge, however. “It is also clear from these observations that even today, one year after the judgment of the Criminal Court of Appeal, there is no imminent risk of irreparable harm to the applicants. Indeed, what the applicants consider to be harm, namely incarceration if they are unable to continue paying the fine or enforcement measures if they are unable to pay the Director of Customs, is hypothetical and absolutely not imminent.”

For these reasons, the judge rejected the request for interim measures, ordering Xuereb and Vella to also pay the costs of the proceedings.

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