A man who had €35,000 seized after he failed to declare €36,000 in cash upon his departure from Malta has filed Constitutional proceedings, decrying what he called the "disproportionate punishment".

Jason James Agius had been stopped at the airport on 7 September 2017 on his way to Dubai and found to be carrying €36,355. The law stipulates that any amount over €10,000 must be declared and Agius had failed to do so. As a result, the amount in excess of €10,000: in this case €26,355, was confiscated in favour of the Government. In addition to this, Agius was fined 25% of the total amount - €9,088. The total fine was therefore €35,443.

In an application filed before the First Hall of the Civil Court in its Constitutional jurisdiction, Agius' lawyers David Camilleri, Joseph Gatt and Charlon Gouder argued that confiscation cannot be attacked by any procedure at law. This means there is no access to a court remedy, in violation of Article 6 of the European Convention on Human Rights as well as the Maltese Constitution.

They also argued that the fact that the offence carried with it a double punishment - a fine and confiscation - meant that there was a disproportionate penalty.

The application notes that the court has no discretion in varying the punishment for such offences. This meant that he had no right to a fair hearing or effective remedy as there was no procedure in place to allow the man to contest the seizure and request the release of the monies seized, submitted the lawyers.

Quoting Grifhorst v France, a European case disputing similar measures in the French legal system, the lawyers argued that there was no "reasonable relationship of proportionality between the means employed and the aim pursued." In that case the court had concluded that the penalty imposed, combining the confiscation and fine, was disproportionate to the infringement committed, thereby violating Article 1 of Protocol number 1 to the convention.

The lawyers requested the court to declare the confiscation under the Cash Controls Regulations to be contrary to his human rights and to come up with a new sanction. They also requested compensation for the breach of his rights.