Court declines jurisdiction after finding applicant failed to exhaust ordinary remedies under Article 5 of Cap. 373 before filing constitutional proceedings.
First Hall of the Civil Court (Constitutional Jurisdiction) · Honourable Judge Dr Audrey Demicoli LL.D. · 9 February 2023
Gordon Debono, who was facing criminal charges including money laundering before the Court of Magistrates sitting as a Court of Inquiry, had a freezing order imposed on his assets. The order allowed him to receive up to €13,976.24 per year — a figure set in law dating back to 1994 (originally LM 6,000). Debono argued that this amount had not been adjusted for the rising cost of living since 1994, and that it therefore violated his right to property under Article 1 of the First Protocol of the European Convention on Human Rights, leaving him unable to maintain a decent standard of living. Debono brought constitutional proceedings before the First Hall of the Civil Court (Constitutional Jurisdiction), asking the court to declare the relevant provision of Cap. 373 incompatible with fundamental rights and to award compensation. The State Advocate raised a preliminary objection, arguing that Debono had not exhausted the ordinary remedies available to him under Article 5 of Cap. 373 before resorting to constitutional proceedings. The court examined the relevant legal framework carefully. Article 5 of Cap. 373 allows an accused person to: receive funds up to the €13,976.24 annual threshold; apply for the court to authorise transfers of movable or immovable property for good reason; seek payment of pre-existing bona fide debts; and request variation of the freezing order in particular circumstances. Critically, Debono admitted he had never applied to use any of these mechanisms — though he had filed similar applications on behalf of co-accused commercial entities. Applying established constitutional jurisprudence — including principles from the Constitutional Court in Elvia Scerri et vs Awtorita' tad-Djar et and Olena Tretyak vs Direttur taċ-Ċittadinanza — the court found that the ordinary remedies under Article 5 of Cap. 373 were accessible, effective, and adequate. The alleged violation was therefore hypothetical and potential, not actual, since Debono had never attempted to use those remedies. The court also distinguished the case from the ECtHR judgment in Brincat and Others vs Malta, which had a materially different procedural context. Accordingly, the court exercised its discretion under Article 4(2) of Cap. 319 to decline jurisdiction, upheld the State Advocate's preliminary objection, and dismissed Debono's constitutional application with costs.
The court upheld the State Advocate's preliminary objection, declined to exercise its constitutional jurisdiction under Article 4(2) of Cap. 319, and dismissed all of the applicant Gordon Debono's requests. Costs were awarded against the applicant.
Constitution of Malta Article 46(2); European Convention Act Cap. 319 Article 4(2); Proceeds of Crime Act Cap. 373 Article 5; Criminal Code Cap. 9 Article 23A(2); First Protocol ECHR Article 1