These proceedings concerned an alleged discrimination in breach of Articles 45 of the Constitution of Malta and Article 14 of the European Convention of Human Rights. The discrimination allegedly arose in relation to a permit for the development of a property in Sliema, which was altered against the applicants’ wishes a few days after it was granted.

The original permit was granted on 24 July 1986, authorising Angelo Xuereb to develop a building site in High Street Sliema into shops, houses and garages, and with a limit of four storeys together with other conditions. On 16 November 1988, the competent authorities issued another permit upon the applicant’s request in relation to the same site allowing that that the number of storeys be increased to five or 19.25 metres from street level.

On 30 November 1988, Mr Xuereb was informed by the Permits Board that the latter permit was revoked. That same day, another permit was issued imposing more stringent conditions. In January 1989, the applicants were accused of breaching the conditions laid down in the permit. Criminal proceedings were initiated against Mr Xuereb, followed by his commencement of civil proceedings in the First Hall Civil Court against the minister and competent authorities, requesting that the decision to revoke the permit issued on 16 November be condemned and reissued, and also claiming that they be compensated for the prejudice suffered as a result of such revocation of the permit. In November 1989, by decree of the Magistrate’s Court, it was agreed that the same Court suspend Criminal proceedings until the Civil issue was determined by the First Hall, Civil Court. However, despite this decree, the Magistrate’s Court resumed criminal proceedings.

The applicants basically argued that the new permit reduced the number of storeys allowed to be developed. They claimed that the unilateral decision taken by the competent authorities was discriminatory, since other properties in the same area were granted the necessary permits to develop their property beyond the storeys allowed to the applicants.

The Director of the Department of Works pleaded that the applicants had not exhausted all ordinary remedies in accordance with Article 46(2) of the Constitution which states:

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person... and may make such orders, issue such writs and give such directions as it may consider appropriate...

Provided that the Court may, if it considers it desirable to do so, 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.

Regarding this claim the Court did not feel the need to go into great depth about its understanding on what exactly constitutes the exhaustion of all ordinary remedies. Reference was merely made to the judgement Tretyak

vs The Director of the Department of Citizenship and Expatriate Affairs (2005) delivered by the same Court and confirmed by the Constitutional Court in January 2006.

It was also claimed that once this case was filed due to the criminal proceedings brought against them, the applicants should have raised the constitutional issue before that court, that would have made a reference to this court in accordance with Article 46(3) of the Constitution.

The Court

Regarding the claim that the applicants had not exhausted all ordinary remedies, the Court did not feel the need to go into great depth about its understanding on what exactly constitutes such. Reference was merely made to the judgement Tretyak vs The Director of the Department of Citizenship & Expatriate Affairs (2005) delivered by the same Court and confirmed by the Constitutional Court in January 2006.

The Court agreed with the Director of the Department of Works, in that it stated that it was evident that the applicants had not exhausted all ordinary remedies available to them.

The Court emphasised that the ordinary remedies available, and allegedly left unexhausted, must always be necessarily adequate, effective and accessible in order to justify a claim of a breach of Article 46(2) of the Constitution.

The Court noted that the applicants brought this Constitutional action so as to hinder the continuation of the criminal proceedings. The Court further noted that ultimately it always had the discretion to continue constitutional proceedings, despite ordinary remedies not being exhausted. Hence, an available ordinary remedy would not oust the Court’s Constitutional jurisdiction should it choose to continue proceedings. The Court however, must always exercise its discretion and make its decision in the interest of the proper administration of justice. (Victor Bonavia vs Planning Authority et [2000]).

Applying the above principles to the case under examination, the Court decided that it was important for the applicants to exhaust the remedies available to them, and hence refused to exercise its jurisdiction over the matter.