An interim measure is an urgent measure requested before the Civil Court, First Hall in its Constitutional Jurisdiction to temporarily suspend an action by which a person would otherwise face a real risk of serious and irreversible harm.

This measure was analysed in detail in a judgement delivered on November 10, 2022 by the Civil Court, First Hall in its Constitutional Jurisdiction in the names Phoenix Payments Limited v Financial Intelligence Analysis Unit (FIAU).

Phoenix Payments Limited requested the court to order an interim measure on the FIAU, to remove a notice published on the Unit’s website indicating an administrative penalty issued on the company.

The administrative penalty by the FIAU on Phoenix Payments Limited was issued in terms of the Prevention of Money Laundering Act, Chapter 373 of the Laws of Malta and the Prevention of Money Laundering and Funding of Terrorism Regulations, Subsidiary Legislation 373.01 of the Laws of Malta.

What the law states

Article 13 of the Prevention of Money Laundering Act gives the power to the FIAU to issue administrative penalties whenever a subject person both natural and legal, breaches or fails to comply with any rules, regulations or directives made under the mentioned act.

With regards to the administrative penalties imposed by the FIAU, the law provides that such penalties, shall not exceed €5 million; or twice the amount of the benefit derived from the contravention, breach, or failure to comply, where this can be determined; or to ten percent of the total annual turnover according to the latest approved available financial statements.

Article 13A of Chapter 373 further dictates that when a subject person feels aggrieved by an administrative penalty imposed on him by the FIAU, he may appeal such administrative penalty both on points of law and fact before the Court of Appeal in its Inferior Jurisdiction.

Article 13C of Chapter 373 further provides that any administrative penalty imposed by the FIAU, shall within five days be published on the official website of the Unit, together with any other administrative measure imposed by the Unit in conjunction with that administrative penalty.

Chapter 373 of the Laws of Malta dictates that in the case the administrative penalty has been appealed in terms of article 13A, the FIAU shall without undue delay publish information that the penalty imposed on the subject person is pending appeal before the courts. Once the case is decided by the Court of Appeal, the FIAU shall also update the notice published on their website with the latest decision.

Company's claim

In this case, Phoenix Payments Limited claimed that the administrative penalty issued by the FIAU was being challenged before the Court of Appeal, which case was still sub-judice and before the Civil Court in its Constitutional Jurisdiction.

The company further claimed that since the case was still sub-judice before the mentioned courts, the notice published by the FIAU on their website indicating that an administrative penalty was imposed on the company in question, apart from being in breach of the fundamental rights as established under the Constitution and the European Convention, such measure was also causing irreversible damage to their business.

It stated that following the publication of the administrative penalty imposed by the FIAU several clients decided to terminate their business relationship, causing considerable financial loss to the company.

Court's considerations

The court in its judgement made reference to a decision by the Constitutional Court dated August 22, 2005, in the names Joseph Emanuel Ruggier et vs Joseph Oliver Ruggier pro et noe et and to another judgement by the Constitutional Court dated March 29, 2019 in the names Sherif Mohamed Shennawyh vs the Attorney General, wherein it was established that article 46(2) of the Constitution and sub-article 4(2) of the European Convention Act of Chapter 319 of the Laws of Malta, even though they do not make specific reference to the term ‘interim measure’, clearly state that the court may make such orders as it may consider appropriate for the purpose of enforcing or securing the enforcement of the protection of the fundamental rights established by the Constitution or the European Convention on Human Rights.

The court also referred to another judgement delivered by the Civil Court, First Hall in its Constitutional Jurisdiction decided on June 16, 2020, in the names HSBC Bank (Malta) v the State Advocate et. where the court made reference to jurisprudence by the European Court of Human Rights and listed those instances where a request for an interim measure should be acceded to:

1) There should be no other remedies available to the applicant;

2) The applicant must show that prima facie his fundamental rights are being breached;

3) That the measure will cause irreversible damage to the claimant;

4) That if the measure is not provisionally suspended with immediate effect, an imminent risk of serious harm would exist.

The court in this case after having heard the submissions made by the parties concluded that the FIAU acted in terms of the provisions of the law as established under Chapter 373 of the Laws of Malta. The FIAU also issued a statement stating that the administrative penalty issued on Phoenix Payments Limited is subject to appeal before the court and to proceedings before the Constitutional Court.

The court also observed that in this case any loss of business or any damage experienced by the applicant were not considered to be of irremediable harm, considering that article 13C of Chapter 373 of the Laws of Malta provides that once a decision by the Court of Appeal and by the Constitutional Court is delivered, the FIAU shall without undue delay publish any decision which alters or revokes in whole or in part the administrative penalty in question.

Finally, the court rejected the request filed by Phoenix Payments Limited to order an interim measure for the FIAU to provisionally remove the notice published on their website containing information about the administrative penalty issued by the Unit against the applicant.

Dr Frank A. Tabone is an Associate at Azzopardi, Borg and Associates Advocates.