Customs seizure of a boat needs no charge against its owner

The First Hall of the Civil Court, in its constitutional jurisdiction, on 26 February 2026 rejected a claim that the customs seizure of a fishing vessel breached its owners' rights because they were never charged with an offence. Mr Justice Francesco Depasquale held that customs seizure is a proceeding in rem, against the thing itself, and does not depend on criminal proceedings against the owner. The case is P.P. vs Direttur Generali (Dwana).

The facts

An Armed Forces of Malta patrol boat intercepted a fishing vessel owned by a married couple. According to the customs authorities, the vessel carried 34,600 litres of gasoil on which no duty had been paid, much of it in eight plastic containers of 1,000 litres each. The vessel was licensed only for fishing.

The Director General (Customs) issued two seizure notes, one for the gasoil and one for the vessel. The owners challenged the notes under articles 72 and 73 of the Customs Ordinance (Chapter 37 of the Laws of Malta) and article 28 of the Excise Duty Act (Chapter 382). The civil courts rejected that challenge.

Meanwhile the vessel and the gasoil were released against two bank drafts of €35,000 and €13,678 under article 72(4) of Chapter 37. Criminal proceedings were brought against the crew, who were acquitted, and separately against the master, whose case was still pending.

No criminal proceedings were taken against the owners. In June 2022 they filed this case. They argued that confiscation is a penalty only a criminal court may impose, in breach of articles 37 and 39 of the Constitution, article 1 of the First Protocol and article 6 of the European Convention on Human Rights.

What the court held

The court refused the respondents' request that it decline its constitutional powers. It released the State Advocate from the case, because only the Director General (Customs) makes customs seizures.

On the merits, the court held that confiscation under article 68 of Chapter 37 is mandatory once goods liable to confiscation are found on a vessel, and leaves no discretion to the director. The knowledge the article requires is that of the person using the vessel, and the law draws no distinction between owner and user. The court noted that the owner had engaged the master and crew himself.

The court held that article 37(2) of the Constitution allows a taking of property as a penalty for, or a consequence of, a breach of the law, whether in civil proceedings or after a conviction. The second paragraph of article 1 of the First Protocol lets the State enforce laws to secure the payment of taxes and penalties. Customs seizure, the court found, is a deterrent against smuggling and tax evasion in the general interest.

The court also noted that the bank drafts given in place of the vessel and the gasoil were expressly tied to the criminal proceedings against the master, which were still pending. The question of confiscation therefore remained open, and the court held that no breach of a fundamental right could be found.

On the fair-hearing claim, the court held that "il-fatt li tinħareġ mill-Kummissarju tad-Dwana nota ta’ qbid, bl-ebda mod ma hija determinazzjoni ta’ xi kolpevolezza ta’ xi reat jew xi deċiżjoni ta’ xi akkuża kriminali" (the issue of a seizure note by the customs authority is in no way a finding of guilt of an offence or a decision on a criminal charge).

Customs seizure, the court held, is a proceeding independent of any criminal case, so article 39 of the Constitution and article 6 of the Convention did not apply. The court rejected the owners' claims, with costs against them.

Why it matters

An owner whose vessel or vehicle is seized under the customs laws cannot rely on the absence of a criminal charge against him. The dispute is over whether the seizure was lawful, in proceedings under articles 72 and 73 of Chapter 37, and over who knew what was on board. The court also treated a confiscation still open in related criminal proceedings as no completed breach.

Where it sits

The case applies the three rules of article 1 of the First Protocol: peaceful enjoyment, deprivation of possessions, and control of use. Forfeiture in customs matters falls under the control-of-use rule, where the State has a wide margin of appreciation but must keep a reasonable relationship of proportionality between the means and the aim.

The court relied on the European Court of Human Rights in AGOSI v. United Kingdom (24 October 1986). It also relied on the First Hall of the Civil Court (23 October 2014) and the First Hall of the Civil Court (31 May 2018) for the view that proportionality is not a sum comparing the value of the thing seized with the duty lost.

For the in rem character of confiscation, the court cited a judgment of 27 February 2003 on a customs seizure. On whose knowledge counts, it followed the Court of Appeal (29 January 2016) and the Court of Appeal (16 December 2021), which read the word "xjentement" (knowingly) in article 68 to cover the owner or the master he appoints.

Source

First Hall of the Civil Court (Constitutional Jurisdiction), P.P. vs Direttur Generali (Dwana), 299/2022, 26 February 2026: 299/2022