29.01.2025
On the 20th of January 2025, the First Hall Civil Court (Constitutional Jurisdiction) (the “Court”) delivered a landmark judgement in the case of Sanchez Fernando Gonzalo-Noel vs Avukat tal-Istat et (Application No. 467/2023). Applying the principle of proportionality, the Court ruled that Article 533 of the Criminal Code violated the fundamental right to liberty as protected in Article 34 of the Constitution of Malta (the “Constitution”) and Article 5 of the European Convention for the Protection of Fundamental Human Rights and Freedoms (the “Convention”), owing to the unfettered discretion vested in the Registrar of the Courts.
The offending provision of the Criminal Code compels the criminal courts, on application of the Registrar, to convert unpaid court expenses, as determined by the courts in the judgment convicting the person concerned and ordering him to pay the same, into imprisonment at the rate of 1 day for every EUR11.65 or fraction thereof, and to commit the convicted person to imprisonment accordingly.
The applicant had been convicted by the Magistrates Court, on his own admission, of various offences of grievous bodily harm and wilful damage to property, and sentenced to the punishment of imprisonment for 4 years. He was also ordered to pay court costs which up to that point in time had remained unquantified. These were subsequently computed by the Registrar in the amount of over €23,000, which the applicant was unable to pay, consequently defaulting. The Registrar then sought to request the Magistrates Court to convert these expenses into 2,004 days (or 5 ½ years) of imprisonment, applying the aforementioned “rate of exchange”. This resulted in a term of imprisonment which was even longer than the term of imprisonment to which the applicant had been sentenced for the crimes he admitted to have committed. Making matters even worse, the law excludes such additional imprisonment on conversion of court expenses from qualifying for remission for good conduct.
The applicant successfully petitioned the Magistrates Court to revoke its decree contrario imperio, giving notice that he intended to challenge the validity of Article 533(2) before the Constitutional courts. In view of this, and considering that the applicant’s arguments were not bereft of merit, that court refrained from giving any further consideration to the Registrar’s request pending the outcome of the constitutional proceedings.
The applicant in fact proceeded to institute the intimated constitutional action, challenging the validity of the archaic legal provision contained in the Criminal Code allowing for such conversion, reminiscent of the long abolished provisions contained in the Code of Organisation and Civil Procedure which once allowed a creditor to imprison his defaulting debtor, arguing that this infringed his fundamental human right to liberty as enshrined both in the Constitution as well as in the Convention.
In its judgment, the Court first outrightly rejected the State Advocate’s plea that the applicant had not exhausted all domestic remedies available to him by having failed to lodge an appeal from the judgment in virtue of which he had been convicted and ordered to pay the court costs, since any such appeal would not have addressed the constitutional issue raised. The Court then found that Article 533 of the Criminal Code is in violation of the fundamental rights guaranteed by Article 34 of the Constitution and Article 5 of the Convention, since the said article grants the Registrar absolute discretion to determine by what means to enforce the payment of the expenses due as well as since it affords no discretion to the courts to themselves determine the amount and/or the period of imprisonment and therefore breaches the principle of proportionality.
The Court ordered that the ruling be communicated to the Minister responsible for Justice, so that the Criminal Code be amended in such a manner so as to ensure that Article 533 no longer remains in conflict with either the Constitution of Malta or the European Convention for the Protection of Fundamental Human Rights and Freedoms.
The Court also ordered that its decision be communicated to the Court of Magistrates, in order that it might take cognisance of the same.
In their first comments on the Court’s decision, applicant’s lawyers Dr. Kevin F. Dingli and Dr. Suzanne Shaw, both partners in Dingli and Dingli Law Firm, stated that in spite of the victory, they would be advising the applicant to consider entering an appeal to the Constitutional Court amongst other reasons because in their opinion the First Court failed to provide an effective remedy in spite of the fact that it acknowledged that the Court of Magistrates’ hands remained tied by the mandatory dictates of the offending Article 533 of the Criminal Code.
An appeal was in fact filed before the Constitutional Court on the 27th January 2025, arguing that the legal provision allowing for the conversion of unpaid court expenses into imprisonment was in absolute violation of the fundamental right to liberty safeguarded under Article 34 of the Constitution of Malta and of Article 5 of the European Convention for the Protection of Fundamental Rights and Freedoms, as it seeks to give legal sanction to what is essentially imprisonment for debt, and does not fall under any of the exceptions allowing for the deprivation of that fundamental right, which exceptions are to be given the strictest interpretation.
In subsidium, should the Constitutional Court reconfirm the findings of the Court to the effect that Article 533 of the Criminal Code is only in violation of the supreme law owing to its excessiveness, when applying the principle of proportionality, then to proceed to provide an effective remedy.