Man files constitutional challenge to €10,000 COVID fine

A man facing a fine of up to €10,000 for breaching Covid regulations has filed constitutional proceedings, claiming the fine is illegal.

Nicholas Gatt was booked by the Environmental Health Directorate on 10 March for disobeying an order to quarantine. Such a breach is punishable with a fine of up to €10,000. Gatt contested the fine. Sometime later, Gatt received a summons, ordering him to appear before a Commissioner for Justice in June.

The man did so, accompanied by his lawyers, who argued that the proceedings breached article 39 of the Constitution, which enshrines the right to a fair hearing. This, argued the lawyers, was because the fine of €10,000 amount to criminal charge which must be heard by a competent court.

The government was aware of this issue and had made two legislative attempts to fix the "illegal and unconstitutional" situation, publishing Bill 166 in October 2020, which was not approved by Parliament and subsequently, Bill 198, which was published in the Government Gazette in February this year.

In a preliminary ruling delivered on 16 September 2021, the Commissioner for Justice presiding over the Tribunal dismissed Gatt's preliminary pleas, on the basis that the Tribunal was acting in accordance with laws passed by Parliament.  In reaction, Gatt applied to the Civil Court in its constitutional capacity for redress.

Gatt is arguing that the September judgment "clearly showed that the applicant's fundamental rights were not and will not be safeguarded and were in fact breached…"

Citing the so-called Engels Criteria and ECHR judgments, the man's lawyers claim that the fact that the fine applies to all citizens equally, is not intended as compensation for damages, is intended as a punitive deterrent and is of considerable size, means that the offence amounts to one of an intrinsically criminal nature which had to be heard by a court of criminal jurisdiction.

The court was requested to declare the article of the law under which Gatt was fined as incompatible or inconsistent with the Constitution. This would imply that the article was also null and without effect. The First Hall of the Civil Court, in its Constitutional jurisdiction, was therefore asked to declare that the proceedings violated his right to a fair hearing.

Lawyers Ivan Mifsud, Natalino Caruana De Brincat and Joseph Calleja signed the application.