Interim measures will only be granted by the Constitutional Court when no ordinary remedy is at the disposition of the claimant.
Interim measures will only be granted by the Constitutional Court when no ordinary remedy is at the disposition of the plaintiff. This was declared by Constitutional Court on the 22nd December 2022 in the judgement Gordon Debono Et. Vs Il-Kummissarju tal-Pulizija, L-Avukat tal-Istat u L-Avukat Generali. The Court was presided over by Judge Neville Camilleri.
On the 25th November 2020, the plaintiffs were arrested and escorted to the Court of Magistrates (Malta) and were accused of money laundering. The Court of Magistrates (Malta) gave an order to freeze their assets according to article 5 of Chapter 373 of the Laws of Malta and Article 23A(2) of Chapter 9 of the Laws of Malta. However, the plaintiffs claimed that they were not given access to investigative material and were granted bail on the 17th December 2020.
The plaintiffs filed an application before the Constitutional Court on the 09th December 2022 asking the Court to grant an interim measure to suspend the criminal procedures and any ancillary acts instituted against them, because they claimed that a number of their fundamental rights were being breached. These included their fundamental rights of personal freedom, the right to freedom of movement, the right to a fair hearing and the right to enjoy their possessions.
In their reply, the defendants objected to these claims outlining that if the Court were to accept them, the plaintiffs would be able to leave the country and that the process of collecting evidence would come to a halt. Moreover, the defendants said that the plaintiffs’ requests should have been made before the Court of Magistrates and not the Constitutional Court. They were of the view that an interim measure is only given in exceptional and extraordinary circumstances and can only be adopted restrictively.
In deciding whether it should grant an interim measure, the Court quoted the judgement HSBC Bank (Malta) p.l.c vs L-Avukat tal-Istat decided on the 16th June 2022 which explained the conditions which must be satisfied for the Court to grant such a measure. The following are the conditions:
1. There must be no alternative ordinary remedy at the disposition of the plaintiff;
2. The plaintiff must show that there is a prima facie breach of a fundamental right which right cannot be hypothetical or uncertain;
3. Without the interim measure irreparable damage would occur;
4. There must be an imminent risk necessary to issue an interim measure.
The Court then proceeded to analyse these conditions in relation to the present case. With reference to the first condition, the Court explained that the proceedings which the plaintiffs are requesting to be suspended, are still being heard in front of the Court of Magistrates (Malta) and are at a preliminary stage where the evidence is being gathered. It said that the plaintiffs are still being allowed to make use of their financial resources in a limited way and have also been granted bail under specific conditions. In addition, they are still able to file an application in front of the Court of Magistrates (Malta) to vary their conditions of bail. Therefore, the Court concluded that since this ordinary remedy is available to the plaintiffs, the first condition was not satisfied to issue an interim measure.
Regarding the second condition, the Court stated that the plaintiffs have based their claims on hypothetical circumstances. This is due to the fact that since the Court of Magistrates (Malta) is still in the preliminary stage collecting evidence, there cannot be a prima facie breach of the plaintiffs’ fundamental rights. The Court also outlined that there was no imminent risk which granted the issuance of an interim measure and that no irreparable damage would occur if the interim measure was not issued.
Therefore, the Court came to the conclusion that none of the above elements were satisfied for it to grant an interim measure. It refused to suspend the criminal proceedings against the plaintiffs and refused to suspend any ancillary acts such as the the freezing of their assets in front of the Court of Magistrates (Malta). The case was sent back to the Court of Magistrates (Malta) to continue being heard.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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