Judge rules Constitutional case filed by Manuel Delia over prison visit can continue, rejects State's objection

A judge has rejected one of the defences raised by the State in a case filed by journalist and campaigner Manuel Delia who is claiming that his right to freedom of expression was breached when he was denied free access to the Corradino Correctional Facility and migrant detention centres.

Although Delia had been allowed to visit CCF on 1 September 2020, he later claimed that the result of that tour of the prison facilities was a “controlled and manipulated version” by the prison director and limited or no access to various divisions. 

The case against minister Byron Camilleri, his permanent secretary, the director and CEO of Corradino Correctional Facility, the Head of Detention Services, the Principal Immigration Officer and the State Advocate, was filed in September 2020, with Delia’s lawyers claiming that he had made eight formal requests to access the prison and detention centres to investigate and report on the veracity of claims of illegal behaviour, torture and inhuman and degrading treatment of prisoners and detainees. Despite these requests, access was not given, he said.

He had filed further requests after it became known that a social media influencer known as “Terry ta’ Bormla” had successfully applied for access to visit the prison in a press capacity and had published posts on social media about it in August 2020.

The defendants had contested Delia’s claims, arguing amongst other things, that there had been no breach of his rights and that there was no reason for him to file a Constitutional case, as his complaint dealt with alleged abuse of administrative discretion, which should be dealt with by an action for judicial review of administrative actions.

“The applicant has no reason to enter the prison and detention centres in person if he wants to gather information about the general condition of the persons detained there. This is because the information is already available in the public domain from reports issued by entities which are not Government-owned.”

They noted that Delia had, in fact, been granted a visit to the facility, and argued that some restrictions on access were necessary due to the prison being a high security facility, as well as to safeguard the prisoners’ right to privacy.

In a sitting last October, the First Hall of the Civil Court in its Constitutional jurisdiction, presided by Mr. Justice Toni Abela, ordered that the defence argument about seeking administrative review ought to be decided before the rest of the case.

“...the defendants insist that this court should decline to exercise the powers conferred upon it by the Constitution and the European Convention Act, in order to decide this case.”

The judge noted that, in proceedings concerning human rights breaches, the court was empowered to give any and every remedy it saw fit, even if the remedy was not specifically requested. 

“This court goes further. This court insists that it can also find a breach of other fundamental rights than those claimed, always if the breach is clear and manifest. It must be a breach emerging from undisputed facts at the disposal of the court. But it must also be stressed, that as sacrosanct as this principle may be, so also is the other principle, that which states that actions of this nature in these proceedings are not used abusively, capriciously, or with the intention of discarding ordinary actions which offer an effective remedy.”

Noting that the defendants were arguing that Delia had other remedies at his disposal, the court explained that what had to be considered was whether these other possible court actions provided a remedy that was constitutionally effective, “in the sense that it definitively stopped the infringement of the fundamental right, by making the expected right exercisable.”

Quoting from guidelines on the application of article 13 of the  European Convention on Human Rights, the judge noted that this “remedy must encompass the merits of the complaint as submitted by the applicant. If the authority or court concerned reformulates the complaint or fails to take into consideration an essential element of the alleged violation of the Convention, the remedy will be insufficient.”

A remedy that expedites enforcement is to be preferred, said the judge. The burden to comply with such a judgement lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention, he said.

The Constitutional dispositions cited by Delia dealt with freedom of expression, noted the court. “But beyond this, from an examination of this article of the law it clearly emerges that all that can be obtained under it is a declaration, apart from the award of damages in very restricted circumstances.”

“One can argue that once the actions of a public Authority can be revoked and annulled under article 469A, it is expected that the Authority provide the opportune remedy of its own accord. But for the purposes of an action over a breach of a fundamental human right, these courts cannot rely on that dictated by common sense because it often happens that common sense doesn’t always prevail.”

The remedy provided by the ordinary law should bring the breach of rights to an immediate halt, said the judge.

Ruling that article 469A of the Code of Organisation and Civil Procedure did not provide the remedy stipulated in the European Convention on Human Rights, the court denied the defendants’ objection and ordered the case to proceed.

Lawyers Paul Borg Olivier and Eve Borg Costanzi represented Delia in the proceedings.