Key facts of the case:
Jane Agius, the sole heir of Carlos Chetcuti, filed a Constitutional Case and claimed a breach of the State’s obligation under Article 2 of the European Convention on Human Rights and the corresponding Article 33 of the Maltese Constitution. In 1995, Carlos Chetcuti had died of a pulmonary oedema after being administered a fatal dose of methadone, as part of his drug rehabilitation treatment, during his imprisonment at the Corradino Correctional Facility (prison). In 2014, the Court of Appeal ordered the Director of Prisons to pay €38, 213 in material damages to Mr. Chetcuti’s heirs. Subsequently, Ms. Agius filed an application before the Civil Court, First Hall, (Constitutional Jurisdiction) and claimed a breach of Article 2 of the European Convention on Human Rights and the corresponding Article 33 of the Maltese Constitution as already proven in the aforementioned civil case. The applicant also claimed that existing laws that do not make provision for the granting of moral damages under the Civil Code (CAP 16 of the Laws of Malta) breach Article 13 of the European Convention on Human Rights (effective remedy).
Outcome of the case:
The Court found that on the basis of local and international jurisprudence the applicant did not have recourse to the ordinary remedies at law and therefore had no choice other than constitutional and conventional remedies. Therefore, the Court chose to use the special powers granted to it through its constitutional and conventional competences. The Court found that the applicant was requesting moral damages for breaches of Article 2 of the Convention and Article 33 of the Constitution and that ordinary remedies for such did not exist under Maltese law and therefore only constitutional and conventional remedies where available thus allowing the request to be heard. The Court found that there had been a breach of both of Article 2 of the Convention and Article 33 of the Constitution and that the state failed to protect the life of the prison in question.
It can be reiterated that the absence of civil remedies for moral damages is no longer categorically excluded by our law. Recent judgments given by this same Court, differently presided, recognised this remedy (See Dr. Joseph Pace noe vs Prime Minister, decided on 1 June 2012; Mario Gerada vs Prime Minister, decided on 14 November 2012 [appeal still pending]; and Linda Busuttil vs Dr. Josie Muscat noe, decided on 30 November 2010), whereby our Courts based themselves on Article 3 of the Charter of Fundamental Rights of the European Union as the legal basis for non-pecuniary damages.
However, the Court of Appeal was not of the same opinion and its position was clarified in its judgment and in Linda Busuttil vs Dr. Josie Muscat noe, decided on 27th June, 2014, where it reiterated that “This Court disagrees with the lower Court where it stated that the applicant did not prove material damages in the sense of lucrum cessans, and it instead awarded damages that were held to be non-patrimonial damages which, in accordance with Maltese Law, cannot be awarded. Maltese Law, under Article 1045 of the Civil Code, grants damages, in this field, for loss of future earnings, and it does not seem that the Charter of Fundamental Rights of the European Union, which only applies in the context of cross border interests, can be invoked in those areas that do not fall within the competences of the European Union, such as the right to civil damages.” In this judgment it was however recognised that our Courts have begun to grant compensation for psychological damages insofar as they could have a negative effect on the working life of the victim (e.g. the judgment in Borg Falzon vs Enemalta Corporation, decided by the First Hall Civil Court in November 2013).