A constitutional court has turned down a plea of non-exhaustion of ordinary remedies raised by the authorities in proceedings where Manuel Delia is claiming that his rights were breached when denied free access to prison and detention centres.
In human rights cases, the courts could not rely on common sense since common sense did not always prevail, declared Mr Justice Toni Abela in a preliminary ruling on Tuesday as he rejected the plea raised by the respondents.
The case stemmed from an application filed by the Truth Be Told blogger in September 2020 following media reports about the mistreatment of migrants in detention back in October 2019.
Upon his insistence for access to detention centres and the Corradino Correctional Facility, Delia was directed by a ministry official to send his requests “to the specific entities”.
His request was turned down in so far as detention centres were concerned, while a revised protocol on media access paved the path to Delia’s visit to CCF, 10 months down the line after a report was published by Times of Malta about a group of migrants who were claiming to have been “manhandled in prison, cooped up, hosed down like animals”.
When testifying in the proceedings, former prisons director Alex Dalli defended his decision to give the journalist a controlled tour on that visit, arguing that behind CCF walls “the buck stops with me”.
As the case continued, the Home Affairs Minister, his permanent secretary, CCF authorities, the head of detention services, the principal immigration officer and the State Advocate as respondents argued that the court was not to continue to hear the applicant’s claims since he had failed to exhaust ordinary remedies.
Plea thrown out
But that plea was thrown out on Tuesday.
That plea held water as long as the ordinary remedy was “accessible, adequate, efficient and effective”.
Along with those factors, the court added another element, namely the immediacy of the remedy so that the action would not simply result in a declaration that would necessitate further legal action to produce an effective remedy.
Unless the law offered an immediate and effective remedy, it did not serve as an adequate tool to address the alleged breach of rights or even to stop the alleged violation.
This was an age-old sacrosanct principle acknowledged even under the Treaty on the functioning of the European Union, went on Abela.
And, in fact, in its constitutional competence, the court could provide all remedies it deemed adequate, even if that remedy was not expressly requested by the applicant.
“This court goes even further than that,” went on Abela, adding that the court could declare the breach of some right beyond that requested as long as the breach was “clear and manifest” and based on unequivocal facts.
‘Common sense did not always prevail’
On the other hand, human rights cases were not to be used in an abusive, capricious or vexatious manner so as to bypass ordinary actions that offered an effective remedy.
Turning to the case at hand, the respondents claimed that Delia ought to have sought a remedy in terms of article 469A of the code of organisation and civil procedure, namely a judicial review of an administrative act.
In this case, it was alleged that the prison's director had failed to abide by principles of natural justice and to follow mandatory rules of procedure. And the applicant was claiming that his right to freedom of expression had been breached.
In terms of the ordinary remedy cited by the respondents, all that could be attained was a simple declaration and the award of damages in very restricted circumstances.
One might argue that, once that administrative act was annulled, the relative authority ought to provide a remedy.
However, in matters of human rights “the courts could not rely on common sense because common sense did not always prevail,” concluded the court, pointing out that the remedy also needed to be immediate.
The court ordered the hearing of the case to proceed.
Lawyers Paul Borg Olivier and Eve Borg Costanzi are assisting the applicant.