This case referred to a judgement of the Court of Magistrates (Malta) given in November 2006 which ordered that Chircop be extradited to Australia. The same court stated that Chircop could not be sent to Australia before the expiry of 15 days from this judgement in which he could appeal this decision or claim a breach of his rights under the Constitution of Malta or under the European Convention on Human Rights (ECHR).

Chircop claimed that he was not allowed a fair trial as guaranteed under article 6 of the ECHR and article 39 of the Constitution, on the basis that he was not allowed adequate and sufficient communication with the defence.

The Court of Magistrates had appointed psychiatric experts to establish whether Chircop was “fit to stand trial”. In the interval between appointment and their final evaluation, proceedings had continued.

The defendants claimed that:

• The plaintiff had not exhausted all ordinary remedies as stated in the Constitution and ECHR;

• There was no breach of the right to a fair hearing; and

• The court had every right to continue proceedings even in the absence of the plaintiff.

The court’s role in extradition proceedings is not to hear witnesses to decide on the merits of the case but effectively to compile and preserve evidence necessary to justify extradition in accordance with article 8(3) of article 15 of the Extradition Act (Chapter 276 – Laws of Malta).

The court had to examine whether it could exercise its Constitutional competence in conformity with the European Convention Act which gave effect to the ECHR and article 46(2) of the Constitution.

The court stated that the Attorney General had implied that the plaintiff should first have filed an appeal prior to filing a Constitutional case. The AG had in fact made reference to article 46(2) of the Constitution which essentially states as follows: “The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled:

“Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.”

The Plaintiffs on the one hand were claiming a breach of the right to a fair hearing while the defendants were pleading the application of article 6(2).

The court made reference to a significant amount of case-law.

In Gaffarena vs Commissioner of Police et (1993), the court stated that as a rule, in certain cases, the court had to refrain from taking advantage of its Constitutional competence afforded by article 46 of the Constitution.

In Vella vs Bannister nomine, the court, after examining a series of judgements, analysed the concept of exhausting all ordinary remedies. The court inter alia stated that:

• When it is clear the there exist ordinary remedies, as a general principle, such remedies must be availed of and recourse to Constitutional remedies may only take place upon the exhaustion of all such remedies or in the absence of the same ordinary remedies;

• The Constitutional court will not interfere with the discretion exercised by the First Hall conferred by article 46(2) unless there result serious and grave illegalities or manifest errors;

• Each case is different and therefore, must be examined; and

• When ordinary remedies were not availed of, this does not mean that the court must not exercise its Constitutional jurisdiction if the ordinary remedy would only have provided a partial remedy.

If the lack of recourse to ordinary remedies was due to somebody else, it is not desirable that the court halt proceedings.

In Cuschieri vs Prime Minister (1995) the Court stated that article 46 must be read as a whole with the proviso of article 46(2). Article 46 basically gives the First Hall Civil Court Constitutional competence to determine cases of a Constitutional flavour.

However, if the First Hall is satisfied that there exist ordinary remedies at the disposal of the person in question, the same Court may refuse to exercise its Constitutional competence. Evidently, this discretion belongs to the court and must not be abused of.

The general rule remains that so long as there remains a possible legal avenue to exploit including also the possibility of an appeal or a retrial, the court will decline from exercising its Constitutional competence until such has been resorted to.

In a 1997 case, the court stated that the available remedy justifying the court’s refusal to act in its Constitutional competence must be accessible, certain and effective. The courts have stated that this possibility should not be interpreted as being an example of the court shunning its responsibilities.

The court, after taking into consideration the above, concluded by claiming that there existed adequate ordinary remedies that were not availed of and hence, by virtue of article 46(2) of the Constitution, it refused to exercise its Constitutional competence.