An interim measure should be allowed in very exceptional circumstances, such when the life of an individual is in danger. This was held in judgement delivered by the First Hall of the Civil Court in its Constitutional Jurisdiction, presided by Mr Justice Grazio Mercieca on 12 August 2022. The name of the case is Alfred Degiorgio -v- L-Avukat ta’ l-Istat.
Degiorgio filed an application asking the Court to issue an Ad Interim measure with regard to the bill of indictment Ir-Repubblika ta’ Malta -v- George Degiorgio et, which is to take place in September 2022. Degiorgio is asking that this case before the Criminal Court be suspended, until the constitutional case be definitively decided.
Mr Justice Mercieca explained that it must distinguish between the application to issue an ad interim measure and the case which dealt with the merits of the case.
The merits of the case dealt with how the considerable media attention on the case, will affect the trial by jury and more importantly the effect on potential jurors. The Court held that in an ad interim application it must keep within its limits and the outcome should not reflect on the outcome of the merits being investigated by the Court. The Court held that the issue of an ad interim measure was dealt with in international fora. In the International Court in Charles Stewart -v- Canada, the Court held:
“The essential criterion is indeed the irreversibility of the consequences, in the sense of the inability of the author to secure his rights, should there later be a finding of a violation of the Covenant on the merits”
The Human Rights Court in Strasbourg have always held that an ad interim measure should be adopted in truly exceptional cases. Examples of these cases are when invoking the right to life or else the right against inhuman and degrading treatment.
There are cases where an ad interim measure is used in protecting the right to privacy and family life.
The Court gave as an example of a certain Otham who was accused of terrorism in 1998 and was given refugee status in the UK, but was going to be extradited to Jordon. There was a real risk of torture and the Court held that this was a denial of judicial process. The Court delivered an ad interim measure as there was a breach of Article 6 of the Convention for Human Right.
The Constitution does not give a list of instances where interim measures are and therefore, the Court does have a discretion how to apply these measures in the best interest of justice.
The Court may also regulate the procedure to use. For a provisional remedy to be applied the Court must establish that there is a prima facie case of a violation of one’s human rights and there must be exceptional circumstances for it to be applied.
The Maltese Courts do follow the position held in the Court of Human Rights in Strasbourg. The Maltese Court have rejects claims to suspend criminal proceedings when a constitutional cases are pending. In Rosario Sultana -v- Avukat General decided on 3 November 2016, the Court rejected a request to suspend the criminal proceedings because the accused was not given the right to speak to a lawyer before being interrogated.
The Court pointed out that the accused is presumed innocent and it is for the prosecution to prove the guilt of the accused. In this particular case if the accused is found guilty, he would have a right to appeal before the Court of Criminal Appeal and also the Court in its constitutional jurisdiction may give a remedy. The accused may also appeal before the Constitutional Court and the Court in Strasbourg. The Court pointed out that the accused’s complaint could have been raised four years ago when the proceedings started. It was predicable that the Attorney General will issue a bill of indictment.
The Court also pointed out that the application for an interim measure was not raised by the co-accused. Therefore, the co-accused does not want that the criminal proceedings to stop and this is a consideration that the Court has to keep in mind.
The Court then moved to reject the application.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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