Proceedings before a Regional Tribunal against a man who faced the prospects of a €10,000 fine for allegedly breaching public health regulations during the COVID pandemic, were annulled by a court which ruled that the applicant’s right to a fair hearing by an independent court had been breached. 

Nicholas Gatt, 71, was faced with a notice of contravention issued on March 10, 2021 for allegedly failing to abide by strict self-isolation measures in place at the time by the Environmental Health Directorate under orders of the Superintendent of Public Health.

That alleged breach carried a maximum fine of €10,000. 

Rather than pay the fine, Gatt opted to contest it before the relative Regional Tribunal. 

During a first sitting on June 1, 2021, Gatt’s lawyer raised a number of preliminary pleas, including one argument that the proceedings breached his client’s fundamental rights.

The notice of contravention, the applicable fine together with the ensuing summons all pointed to a criminal charge and consequently, such a charge had to be presided over by an independent court set up in terms of the law. 

The lawyer also cited a judgment delivered by the Constitutional Court in the case Federation of Estate Agents vs Director General (Competition) delivered in May 2016, upholding that same argument. 

The case was deferred and the lawyer was asked to produce relevant documentation via email. 

At the next hearing in September 2021, the case before the tribunal ended up before a different Commissioner for Justice who heard the case after being provided with a summary of the previous hearing. 

A preliminary decision was delivered whereby the Tribunal turned down the plea concerning the perceived breach of rights since the Commissioner was authorized to preside over such proceedings by Act of Parliament. 

At the following sitting, which once again landed before the commissioner who had presided at the first hearing, the Tribunal was informed that Gatt had taken his grievance before the constitutional courts. 

Consequently, the tribunal suspended those proceedings pending the outcome of the breach of rights claims case filed before the First Hall, Civil Court in its constitutional jurisdiction. 

During those proceedings, Superintendent of Public Health Charmaine Gauci testified via affidavit, explaining that such regulations were intended to ensure that infected persons would not transmit the COVID-19 virus. 

Personal isolation was fundamental to curb the pandemic according to guidelines laid down by the World Health Organization and the European Centre for Disease Prevention and Control. 

The relative regulations had been enacted by means of amendments tabled by two different ministers, namely the Minister for Justice and the Minister for Health. 

Gatt’s lawyers argued that the €10,000 fine clearly did not concern a “petty offence.”

A similar issue had arisen in cases concerning fines imposed by LESA officials and a Magistrates’ Court had recently declared that regional Tribunals were not lawfully authorized to enforce such fines. 

When delivering judgment the court, presided over by Madam Justice Miriam Hayman, observed that the crux of the issue was whether the fine in question was a criminal charge or simply an administrative penalty. 

Delving into judgments delivered by the European Court of Human Rights, the court observed that every state was empowered to legislate in respect of different aspects of everyday life and also to address the needs which could arise in running the country.

However, when doing so, the state was always to respect fundamental human rights. 

'Shameful that some endanger others’ well-being'

The COVID-19 pandemic had doubtlessly triggered a situation of urgency which made it pressing for Maltese authorities to curb the spread of the deadly virus so as to safeguard public health, even in light of the fast rate of transmission. 

In fact, the court felt duty-bound to reserve a comment in this direction. 

It was shameful that some irresponsible people felt they could endanger others’ well-being by flaunting such regulations, remarked Judge Hayman. 

Turning to the case at hand, the court observed that an administrative fine handed down by a tribunal that was set up in terms of law with all the necessary guarantees to ensure a fair hearing did not breach any fundamental right. 

Rather, such a penalty fell within the legislative duty of those tasked with managing the country’s administration. 

However, the wording of Article 44A(1) of the Public Health Act referred to the “charge of a breach of any order” and also to “any person charged with an offence”.

The relative fine, which was substantial and not at all negligible, was applicable to all who breached public health laws. 

The wording of the law itself left no room for doubt as to the nature of the charges referred to.

“The law spoke clearly about charges emanating from offences which carried a fine that was substantial in amount,” observed the judge.

In light of such considerations, the court concluded that no matter what wording may have been used to refer to such a fine, this was a fine of a criminal nature in the sense that this was a criminal charge. 

Consequently, for the purpose of ensuring the applicant’s right to a fair hearing within a reasonable time before an independent and impartial court set up in terms of law, the court declared that the proceedings before the tribunal were incompatible and inconsistent with article 39 of the Constitution.

That pronouncement was made only in so far as the applicant was concerned.

And that declaration, annulling the proceedings before the tribunal, was deemed as “just satisfaction’ by the court which held that no further compensation was necessary. 

The Superintendent of Public Health was declared as non-suited. 

Lawyers Natalino Caruana De Brincat and Joseph Calleja assisted the applicant.