Communicated on 11 March 2020 Published on 30 March 2020

THIRD SECTION

Application no. 40761/19 Joseph BARTOLO against Malta lodged on 22 July 2019

STATEMENT OF FACTS

The applicant, Mr Joseph Bartolo , is a Maltese national, who was born in 1950 and lives in Marsa . He is represented before the Court by Dr J. Brincat and Dr T. A . Abela , lawyers practising in Marsa , Malta.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 6 November 2014 the Court of Magistrates as a court of criminal judicature, and on appeal on 18 February 2016 the Criminal Court of Appeal, confirmed the applicant ’ s guilt for, inter alia , failing to identify and register animals and declare their movements (Section 35 (1) (c) (iii) of The Veterinary Services Act, Chapter 437 of the Laws of Malta); failing to electronically identify dogs (Regulations 4 and 11 (1) of Subsidiary Legalisation 437.101); and causing unnecessary pain, suffering or distress to animals and failing to take care of their health and welfare ( Section 8 (2) and (3) of the Animal Welfare Act, Chapter 439 of the Laws of Malta) (in relation to his horses), t ogether with being a recidivist. He was fined 7,000 euro (EUR) in toto .

During the criminal proceedings the applicant raised, inter alia , the issues: a) that the failure to fulfil the obligations under Section 35 (1) of the Veterinary Services Act did not constitute an offence in the absence of further regulations which had to be made by the Minister (as provided in Section 35 (2) of the Act); b) a similar argument was raised in connection with Section 8 of the Animal Welfare Act together with the claim that some of his animals were healthy, which meant that he had fulfilled his obligation under the law; c) that Section 7 of the Animal Welfare Act which gave the Minister the power to provide rules establishing systems for the identification and registration of animals did not give the Minister the authority to create offences and punishments .

Both courts dismissed his complaints.

In 2016 the applicant instituted constitutional redress proceedings raising the same above-mentioned complaints.

By a judgment of 25 April 2018 the Civil Court (First Hall) in its constitutional competence rejected the applicant ’ s complaints.

On appeal by the applicant, on 31 January 2019 the Constitutional Court rejected his claims. Confirming the previous judgments it found that while the Minister had not yet made such regulations as provided in Section 35 (2) of the Veterinary Services Act, Section 57 of the same Act provided that “ Any person who contravenes any provision of this Act for which no penalty is specifically provided shall be guilty of an offence and shall be liable, on conviction, to a fine ( multa ) of not more than EUR 11,646.87.” It followed that there was no doubt that failing to identify and register animals and declare their movements was an offence the penalty of which had been established by law and of which the applicant had already been found guilty in prior proceedings.

Similar consideration s applied to the analogous argument concerning Section 8 of the Animal Welfare Act, given that such conduct was punishable via Article 45 of the same Act, which referred to “any person who breached the provision of this act or any regulations made in its connection shall, on being found guilty ...”

As to Section 7 of the Animal Welfare Act (the basis for the enactment of Subsidiary Legislation 437.101) the Constitutional Court considered that the logical reasonable and correct interpretation of Section 7 was that when the legislator gave the minister the powers to make regulations under the said provision, he was being given the power to make regulations about any aspect related to identification and registration systems for animals. Indeed the wording of Section 7 was wide and generic enough to encompass the power of the Minister to make any necessary regulations, including penalties for the non-observance of such regulations. It considered that it would be illogical if the Minister could provide for the obligations but not for the consequences arising from the breach of those regulations. Further, once the power to make penalties was not explicitly excluded and once the provisions worded in a wide sense gave such power, it would not be licit to diminish the power given to the Minister by the law.

Section 7 of the Animal Welfare Act, regarding keeping of animals, reads as follows:

“(1) Animals shall not -

( a ) be kept;

( b ) be kept for the purpose of producing animal products; or

( c ) be kept tethered, in buildings, pens, cages or the like, unless they belong in each case to the species or categories of animals specified in regulations prescribed.

(2) The Minister may make regulations -

( a ) providing for the conditions under which animals shall, in each case, be kept;

( b ) providing for the manner in which species or categories of animals as may be prescribed are to be kept, including -

( i ) the manner in which animals shall be tied or tethered;

(ii) the manner in which animals shall be segregated according to age, sex, or species;

(iii) the space which animals shall be allowed;

(iv) for matters relative to the hygiene of the animal, its housing and other measures to ensure the health of the animal;

( c ) providing for the listing of the categories and the species of animals for which the regulations are applicable; and

(d) for any other matter that may or is to be prescribed.”

Regulation 4 regarding electroni c identification and Regulation 11 regarding offences and penalties, of Subsidiary Legislation 437.101 read as follows:

“4. Any person in possession of a dog in terms of these regulations has to electronically identify the dog by the 30th April, 2012.”

(...)

“11. (1) Any person in possession of a dog who fails to electronically identify such a dog with the Department in terms of these regulations, or any person or entity submitting incorrect, incomplete or false information in the registration form, shall be liable to a fine ( multa ) of three hundred euro (€300).

(2) In the event that an electronically identified dog fails to provide a reading intrascapulae of the said microchip, the owner or any person in possession of the dog is liable to a fine ( multa ) of five hundred euro (€500), unless it is proved by the owner or person in possession of the dog, that the microchip is still located within some other part of the dog.

(3) Any veterinarians authorised to carry out microchipping of dogs under regulation 5(5) shall be liable to a fine ( multa ) of five hundred euro (€500) if it is proved that the veterinarian has intentionally provided incorrect data regarding the registration of the dogs.”

COMPLAINT

The applicant complains under Article 7 of the Convention that Section 7 of the Animal Welfare Act which gave the Minister the power to provide rules establishing systems for the identification and registration of animals did not give the Minister the authority to create offences and punishments.

QUESTION TO THE PARTIES

Did the act or omission of which the applicant was convicted under Regulations 4 and 11 of Subsidiary Legislation 437.101 constitute a criminal offence under national law at the time when it was committed, as envisaged by Article 7 of the Convention? In particular do the mentioned Regulations have a legal basis subject to clearly defined delegation by the legislature (Parliament), particularly concerning the Minister ’ s powers or lack thereof under Section 7 of the Animal Welfare Act to make regulations which included the offences and penalties for their breach?