This was outlined in the recent judgement of Paul Demicoli vs the Attorney General et, decided by the Constitutional Court on 8 August 2023.
This judgement illustrates the court’s approach taken in granting interim measures. The plaintiff alleged a violation of his right to a fair hearing within a reasonable time, as criminal proceedings persisted for 18 years. These proceedings commenced in 2004 and concluded in 2022, with the accused being sentenced to two years’ imprisonment, 18 years after the commission of the offence.
Mr Demicoli, in his constitutional proceedings asserting such a violation due to the protracted duration of the proceedings, asked the Court to suspend the two-year imprisonment sentence until the final decision. He contended that should the Constitutional Court find a breach of his right to a trial within a reasonable time, it possesses discretion to grant remedies that directly impact the punishment imposed by the Criminal Court. The Court of First Instance accepted this argument, and the First Hall of the Civil Court, in its constitutional capacity, ordered Mr Demicoli’s release and the suspension of the two-year imprisonment sentence until a final decision was reached. Additionally, the court imposed a deposit requirement of €5,000 and a personal guarantee of €50,000.
However, after obtaining special permission, the Attorney General, the State Advocate, and the Commissioner of Police appealed the first court’s decision. They asserted that the initial court erred in granting such provisional measures, as a prima facie violation of human rights had not been established, and that the interim measures were not necessary to prevent irreparable harm.
The Constitutional Court upheld the appeal, reasoning that interim measures should only be granted in exceptional circumstances. The appeal also highlighted that as a general rule, the decisions of other courts should not be suspended solely on the basis of an allegation of a human rights violation. Moreover, the appellate court was not convinced that a constitutional court would reduce Mr Demicoli’s prison sentence.
Provisional or “interim” measures refer to court orders issued as interim remedies during the pendency of a Constitutional Case until its final decision. An example of an interim measure is when an individual facing the prospect of deportation to a country where they may encounter persecution or torture, asks the Constitutional Court to postpone the deportation pending the final decision determining whether such deportation constitutes a violation of their human rights. Interim measures are crucial, as there are instances when human rights transgressions cannot be adequately rectified once the infringement has taken place.
Article 46 of the Constitution bestows upon the Court the authority to issue any orders, writs, or give any direction as it deems suitable to ensure the protection of human rights, as enshrined in Articles 33 to 45 of the Constitution of Malta. The nature of human rights law necessitates that such cases are treated with urgency, in that violations of the most fundamental rights are of the State’s utmost concern as the State is positively obliged to protect and preserve the human rights of every individual. Interim measures do not prejudice the final decision of a court, and it may very well be the case of having a final decision which finds no breach of human rights notwithstanding the granting of a provisional remedy.
One notable case in this regard is a judgment delivered by Judge Lorraine Schembri Orland (now serving as a judge at the European Court of Human Rights) in the names of Anthony Mario Vella et vs Reġistratur tal-Qrati Ċivili u Tribunali et. In this case, the plaintiffs had been ordered by the Court of Appeal to vacate their residence in a proceeding initiated by HSBC Bank Malta PLC. The plaintiffs alleged that they were denied a fair hearing in the eviction case, contending that they had not been afforded a sufficient opportunity to respond to the Bank’s claims.
In its constitutional jurisdiction, the court as presided by Judge Schembri Orland, ordered the suspension of the eviction order issued by the Court of Appeal and held that nothing precludes the Constitutional Court from granting interim relief, even when such relief pertains to decisions rendered by other courts. Judge Lorraine Schembri Orland further elucidated that the Constitution often serves as the last recourse for citizens, and in certain instances, the sole safeguard against human rights infringements, irrespective of the validity of such actions under ordinary law.
Mr Demicoli’s judgement exemplifies the Constitutional Court’s approach to the issuance of provisional measures, which is predicated on the presence of an imminent risk of irreparable harm. Local courts frequently invoke the writings and judgments of the European Court of Human Rights in Strasbourg to substantiate this approach, effectively adopting a test necessitating the demonstration of peril to life or limb as a prerequisite for obtaining provisional measures.
Additionally, Mr Demicoli’s case highlights the Constitutional Court’s reluctance to step-in and suspend decisions rendered by other courts. Nevertheless, it is noteworthy that the law does not limit the Constitutional Court from taking such action, and there have been instances where the Constitutional Court has indeed suspended sentences imposed by other courts when a risk of irreparable harm was identified.
Av. Malcolm Mifsud
Mifsud and Mifsud Advocates
This article may also be accessed on Malta Today.
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