Skip to main content

Although the Government is the legitimate defendant in proceedings of a constitutional nature, where the type of remedy sought by the plaintiff affects the rights of a private citizen then their unity into the suit is merited. This was declared by the Constitutional Court in the case of Avukat Dottor Alfred Grech v. Avukat Generali u Kummissarju tal-Pulizija on the 27th September 2019.

The case was an appeal by Grech, who had been the subject of a complaint made to the Executive Police by a certain Anthony Xuereb. The Police had investigated the complaint and found that there were no grounds upon which any criminal action could be taken against Grech.

Through the procedure in Article 541(3) of the Criminal Code, Xuereb appealed this decision in front of the Criminal Courts, which proceedings led to the Court ordering the Police to take criminal action against Grech. Subsequently, Grech filed an application before the First Hall Civil Court in its Constitutional Jurisdiction pleading that the procedures in Article 541 of the Criminal Code are not in line with the right to a fair hearing, guaranteed by both the Constitution and the European Convention on Human Rights. He also asked the Court to annul the decision of the Criminal Court, instituted by Xuereb, and to grant him the opportune compensatory damages. This action was instituted against the Attorney General and the Police Commissioner.

In their written submissions, the defendants held that Xuereb should also be joined in as a party to the hearing. The First Hall Civil Court accepted this request by court decree and Grech filed an appeal to this decision, claiming that Xuereb did not meet the legal requirements of juridical interest to enable him to join the proceedings. He claimed that Xuereb’s interest was only hypothetical because he was only using the right given to him by the law in virtue of the Criminal Code, however the outcome of the decision would not directly affect him. Furthermore, he cited jurisprudence which clearly states that juridical interest cannot be the general interest that all citizens have, but must directly affect specific rights of the defendant.

The Constitutional Court firstly carefully considered the reasoning of the First Court. The Civil Court had held that although a party joined to a suit must have a direct juridical interest, this does not prevent someone from joining a suit to give his reasons in favour or against the subject-matter in question, should this affects his rights. Therefore, a party joined to the suit does not necessarily mean that they must be found guilty or innocent, responsible or irresponsible. The nature of certain particular cases merits the presence of third parties joining the suit, including private citizens in human rights cases, because the remedy sought impinges on the rights of that individual.

The Constitutional Court therefore rejected the claim by the appellant that Xuereb’s rights in this case were too general to grant him direct juridical interest. Rather, the Court stated that because the appellant asked the Court to reverse the decision of the Criminal Court which was instituted by Xuereb, then he is necessarily directly affected by the present proceedings. The Court made reference to the judgement Grace Spiteri vs Avukat Generali (25th April 2018) wherein the Court held that if the law grants the right to a party to start proceedings, then any decision that affects those proceedings must necessarily include the participation of that party.

Therefore, the Court concluded that Xuereb has an interest in the proceedings because the law gave him the right to institute them. Furthermore, the rule of audi alteram partem, or the rule that both parties must be heard in a trial, necessitates that he be heard since the outcome of the proceedings would affect the decision of the Criminal Court. The appeal was, therefore, rejected with all expenses to be paid by the appellant.

Av. Malcolm Mifsud


Mifsud & Mifsud Advocates 

This article may also be accessed on Malta Today.

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.