The penal perspective of the Travel and Tourism Act (Chapter 409) : in need of legal reform?

Abstract

The punitive regime of Chapter 409 has been in operation since 1999. During these last twenty-one (21) years, a variety of criminal proceedings have been instituted against offenders for diverse reasons mainly concerning breaches of operating licenses, enforcement orders and appeals which have been lodged to the Tourism Appeals Board and to the Court of Appeal on points of law. Having said that, in the interim, certain established principles of law have been tested by the Maltese Constitutional Courts as well as by the European Court of Human Rights, which judgements could have an impact on the legitimacy or otherwise of the provisions of Chapter 409 relating to criminal offences and punishment. In this regard, landmark judgements protecting the finality of judgements and the need of proportionality of punishment have exposed the likelihood that the salient provisions of punishment in Chapter 409 may indeed breach the principles of ne bis in idem and proportionality. This dissertation argues that there are instances under this Act where a second criminal proceeding may be initiated in respect of the same offence or in relation to the same facts arising from the same offence, on the basis of which a first conviction has already been obtained. Moreover, this dissertation will reveal that the fines imposed for a breach of an operating license or of an enforcement notice under this Act are dramatically higher than those in other laws which have already been found to breach the principle of proportionality both by the Maltese Constitutional Court and the European Court of Human Rights.