DISSENTING OPINION OF JUDGE BOÅ NJAK

1 . To my regret, I cannot agree with the majority that the application in the present case should be declared admissible, as I believe that the Government are right in their objection of non-exhaustion of domestic remedies.

2 . While it is true that the applicant instituted constitutional redress proceedings complaining, inter alia , about the discretion of the Attorney General as public prosecutor to decide in which court to try an accused, he failed to make this complaint expressly under Article 7 of the Convention, claiming a violation of Article 6 § 1 of the Convention instead. Subsequently, following the judgment of the Court in Camilleri v. Malta (no. 42931/10, 22 January 2013), the applicant asked the courts to add a complaint under Article 7, claiming a lack of foreseeability. The national courts rejected the request to allow this additional complaint. This rejection was apparently based on Article 175 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), according to which the power of a court to permit amendments to pleadings is limited to situations where such amendments do not affect the substance either of the action or of the defence on the merits of the case.

3 . In my opinion, this legal framework in general and the rulings of the national courts in the applicant ’ s case in particular cannot be considered as manifestly unreasonable or overly formalistic. In order to ensure the rational and fair conduct of proceedings, any reasonable legal system limits the possibilities of parties to modify or amend their claims. What is more, some legal systems expect claimants to specify the legal characterisation of their claims at the beginning of the proceedings, with the courts being bound by that legal characterisation. In itself, such an expectation is not incompatible with any Convention requirement. One should not forget that the facts of a case can never be entirely separated from the law and, vice versa , the law cannot be fully separated from the facts. When legally assessing a certain course of events over time, one has to identify the relevant facts in the light of the legal provisions. On the other hand, it is necessary to ascertain which legal provisions from the entire legal order might form the normative constituent elements of the case. In some instances this may prove to be a complicated operation, requiring gradual reflection on an event in the light of the legal provisions and vice versa . The normative constituent elements of the case and the relevant facts respectively form the premissa maior and premissa minor of the legal syllogism, allowing for a conclusion as to their correspondence.

4 . Turning to the circumstances of the present case, it is apparent that the applicant complained before the national courts about the discretion of the Attorney General, but he did so from the perspective of the fairness of (criminal) proceedings. Only later, when all the pleadings of the parties had been concluded, did he seek leave to add a complaint alleging a lack of foreseeability. It is not unreasonable to consider this complaint to be a separate and new one, and therefore no longer permitted at such a late stage of the proceedings. On this point, it might be necessary to add that the applicant never complained that this particular refusal by the national courts violated any of his Convention rights. Furthermore, I do not believe that the national courts could be expected to address the issue of foreseeability in the Attorney General ’ s discretion of their own motion, in the absence of the lack of a timely complaint by the applicant to that effect. In this connection, I would like to refer to a recent decision of our Court in the case of Caruana v. Malta (no. 56396/12, 15 May 2018). Since the applicant in that case had failed to submit that the legal provision in question was not precise or foreseeable, the Court held that there was no reason for it to delve further into the matter. If the Court, which frequently reiterates that it is master of the legal characterisation of the facts of a case, does not examine a particular issue from the point of view of foreseeability in the absence of a timely complaint by an applicant to that effect, I believe that no more should be expected from the national courts when examining the claims before them.

5 . Additionally, the Government argued that the applicant could have lodged a fresh set of constitutional redress proceedings relying on the Court ’ s findings in Camilleri . The applicant failed to explain why he did not decide to seize that additional opportunity or to argue that the legal avenue in question would not be an effective legal remedy in his case. In conclusion, I find it impossible to reject the Government ’ s objection of non ‑ exhaustion of domestic remedies.

6 . Had the applicant exhausted domestic legal remedies, I would have had no problem in joining the majority in finding a violation of Article 7 of the Convention on the merits. Since, however, it seems to be the established practice of this Court that a judge who considers an application to be inadmissible for non-exhaustion of legal remedies is not supposed to find for the applicant on the merits, I also voted for finding no violation in the present case under the operative part.

DISSENTING OPINION OF JUDGE VALENZIA

The majority conclude that the relevant legal provision at the material time (prior to recent amendments in the light of the Camilleri judgment) failed to satisfy the foreseeability requirement and provide effective safeguards against arbitrary punishment as provided for in Article 7 and that there has therefore been a violation of Article 7 of the Convention.

A. Non-exhaustion of domestic remedies

It is to be pointed out that in this case the Constitutional Court in Malta never decided, on the merits, whether there had been a breach of Article 7 per se even though, in substance, the question of the Attorney General ’ s discretion was raised under Article 6.

The majority dismissed the submission by the Government that the applicant could have lodged a fresh application for constitutional redress proceedings in Malta before referring the matter to the Strasbourg Court.

The Government insisted that the Court ’ s power to decide a complaint of its own motion under a different Article from the one relied on by the applicant did not override the need to exhaust domestic remedies (see the Bezzina Wettinger case).

The Government ’ s contention is that the applicant did not exhaust domestic remedies because the matter could still have been decided by the Constitutional Court in Malta before he applied to the Strasbourg Court.

The applicant already had a Strasbourg Court decision in his favour and so he did not need to apply to this Court again for reaffirmation of a principle which had already been established. Nothing prevented him from applying in Malta, not even the statutory time-limit, which in Malta does not run in human-rights cases . . Just as the applicant relied on the Camilleri judgment in Strasbourg, he could easily have relied on it in the Maltese courts. So, in my view the applicant did not exhaust domestic remedies which were readily available.

B. Merits

The Court asserts that it is not disputed that the impugned provision of the law did not give rise to any ambiguity or lack of clarity as to its content in respect of what actions were criminal and constituted the relevant offence (see paragraph 46). The law also provided for the punishment applicable in respect of the offences with which the applicant was charged.

However, the judgment states that the law did not make it possible for the applicant to know, at the time of the commission of the offence, which of the two punishment brackets would apply to him.

I cannot agree with the Court ’ s conclusion that it has not been shown to its satisfaction that the applicant could have known, even with appropriate legal advice, which court he would be tried in, and therefore the consequences which his actions could entail.

For those who are familiar with Maltese law and case-law (and – besides ignorance of the law being no excuse – the applicant was no stranger to the drugs law), one does not need rocket science to know that cultivating cannabis on an industrial scale (which is why he was charged with aggravated possession, the substance not being for his own exclusive use) would entail trial by jury before the Criminal Court and not being summarily tried before the Magistrate ’ s Court. In this case the applicant could not have had any doubt that he would be tried by jury. Article 7 has to be applied to the concrete and particular circumstances of the case and not in a general way. Such cases of industrial-scale cultivation of drugs could even be considered as res ipsa loquitur cases, just like the crime of murder which is never tried summarily. Moreover, the applicant did not provide any examples to show that persons charged with a similar amount of drugs had been tried before the Magistrate ’ s Court.

The basis of the applicant ’ s allegation of a breach of Article 7 is not a general one as to principle, but how the discretion was applied in his particular case when compared to the Peter Joseph Bonnici case. The applicant stated in page 6 of his submissions that the problem was the choice of jurisdiction, which gave rise to a disparity in punishment in this case. The applicant wrongly indicated that Mr Bonnici was tried before a Magistrate ’ s Court, whereas in fact he was tried before the Criminal Court, and from that mistaken premise he deduced and claimed (under the heading “Just Satisfaction”) that he had spent four years and six months longer in detention than Mr Bonnici , who was sentenced to imprisonment for a period of seven years and six months, and accordingly claimed 85,000 euros. The applicant therefore alleged that it was the jurisdiction of the court which made the difference and wrongful use of the Attorney General ’ s discretion. However, it is clear that both were judged by the Criminal Court and the difference concerned the quantity of the illegal substance and the fact that Mr Bonnici admitted the charges in the initial stages of the proceedings and not because of arbitrary use of the Attorney General ’ s discretion. So it cannot be said, on the basis of the mistaken premise made by applicant, that there was a breach of Article 7.

The applicant ’ s complaint that the Attorney General used his discretion incorrectly was based on his receiving a harsher punishment than Mr Bonnici under similar circumstances, not because he did not know what kind of punishment his offence would bring. The question of use of discretion does not arise in this case, as both were tried by the Criminal Court.