From the Bench - More jail time for unpaid court expenses?

The First Hall of the Civil Court recently declared that the provision in the Criminal Code allowing the court registrar to demand the arrest of an individual who fails to pay court expenses violates the fundamental right of protection from arbitrary arrest or detention.

This was substantiated in virtue of the fact that the court does not have any discretion in deciding whether or not to uphold the registrar’s demand. Moreover, it was found to violate the principle of proportionality, as shall be described below.

In Fernando Gonzalo-Noel Sanchez vs State Advocate and Registrar of Criminal Courts and Tribunals, decided on the 20th of January 2025 by Mr Justice Ian Spiteri Bailey, the applicant, a Spanish national, argued that article 533(2) of the Criminal Code gave absolute and arbitrary powers to the registrar to convert unpaid court expenses to an additional 2,004 days’ imprisonment in his regard. Had the registrar alternatively proceeded in accordance with article 533(3) of the Criminal Code, by making a declaration to recover the expenses due as a civil debt, he would not have been subject to such an additional period of imprisonment.

He further argued that this discrimination was evidently disproportionate when one considered the fact that the additional period of imprisonment sought by the registrar exceeded the original period laid down when he was found guilty before the magistrates' court on the basis of his own admission of guilt.

The facts of the case were as follows. Following a judgment delivered by the Magistrates' Court on 12th of October 2022, the Registrar of the Criminal Courts and Tribunals sent a letter to Sanchez (who at the time was in prison) demanding the payment of about €23,000 – relating to the employment of experts during the criminal proceedings.

Subsequently, the Registrar filed an application before the magistrates' court  whereby his request to convert this amount to imprisonment was approved by means of a decree dated 13th February 2023. The application was filed on the basis of article 533(2) of the Criminal Code which obliges the court to convert unpaid expenses into imprisonment. The amount is liquidated by the court itself upon an application made by the registrar.

However, Sanchez was neither notified of the application nor was he notified of the decree and subsequently sent a letter to the registrar to withdraw his claim for payment. The registrar rejected such withdrawal by means of a letter, through which Sanchez got to know for the first time of the application filed by the registrar and the decree of 13th February 2023.

Sanchez then presented an application requesting the court to revoke its decree. It was upheld. The same court also upheld his request to suspend the proceedings until the First Hall delivered its judgment regarding the alleged breach of human rights.

The First Hall observed that article 533 of the Criminal Code gives discretion to the registrar to enforce the payment of court expenses through two methods: either by recovering it as a civil debt, or by converting it to a period of imprisonment. The law gives absolute discretion to the registrar and there is no guidance regarding the circumstances under which the registrar should opt for one method and not the other, and/or if one of the methods should precede the other.

The First Hall further observed that the Magistrates' Court does not have any discretion in terms of the method of enforcement, nor does it have any discretion as to the period of imprisonment.

Additionally, it referred to Khodorkovskiy v Russia, a case decided by the European Court of Human Rights, and held that deprivation of liberty should not take place if an obligation can be fulfilled by alternative means.

The court noted that had the registrar first resorted to enforcing the recovery of the payment as a civil debt, rather than immediately opting to demand the conversion to a period of imprisonment, which would have been a totally different scenario.

The fact that the law gives absolute discretion to the registrar certainly violated fundamental human rights on the basis of the principle of proportionality, the court said. This was because proportionality requires that one should examine whether one can reach one’s aim by methods which are not as drastic.

The State Advocate argued that the period of imprisonment would decrease once the requested amount was paid.

However, the court stated that in light of the fact that the applicant was already in prison, once the amount due was determined, he was not under circumstances which permitted him to find employment, nor could he seek a legitimate loan to make good the court expenses.

The State Advocate also argued that since the registrar exercised his discretion in terms of what was provided in the law, his action was not deemed to violate the applicant’s fundamental human rights.

However, the court upheld the applicant’s claim that the lack of discretion given to the courts in deciding whether or not to accede to a demand made by the registrar to convert unpaid court expenses to imprisonment, was disproportionate and amounted to a violation of Article 34 of the Maltese Constitution and Article 5 of the European Convention of Human Rights, which protect a person from arbitrary arrest or detention.

No discrimination

The applicant alleged that the action committed by the registrar was discriminatory when a decision was taken to proceed in accordance with article 533(2) and not article 533(3) of the Criminal Code. However, the court did not uphold this claim since Sanchez did not bring forward satisfactory evidence.

The court ordered the judgment to be communicated to the minister of justice for the necessary amendments to be made to the law to grant powers to the Magistrates' Court relating to the determination of the period of imprisonment for unpaid court expenses.

The court did not award a remedy to the applicant since the period of imprisonment he should serve had not yet been declared, given that the proceedings before the Magistrates' Court had been suspended until the decision by the former was delivered.

The judgment is currently pending on appeal before the Constitutional Court.

Dr Arthur Azzopardi is managing partner, and Alizée Micallef, paralegal at Azzopardi, Borg and Associates Advocates.