The Malta Independent 19 May 2022, Thursday

Court overturns woman’s €3,000 fine: Wardens have no power to enforce COVID quarantine laws

Saturday, 22 January 2022, 12:12 Last update: about 5 months ago

A woman’s €3,000 fine for breaching quarantine has been revoked by a court, which pointed out that the Local Enforcement System Agency (LESA) had no legal power to enforce Covid regulations.

Pavla Stejskalova had been accused of having breached quarantine regulations, as laid down in Legal Notice 72 of 2020, in November 2020. In a decision handed down in April 2021, the Commissioner for Justice had found her guilty in her absence and fined her €3,000.

Stejskalova had filed an appeal against the decision, her lawyers arguing that the judgment was completely null and without effect as the sitting should never have taken place, due to a directive issued by the Chief Justice which ordered the adjournment of non-urgent cases.

The woman’s lawyer had also presented documents which they said showed that she had observed her quarantine period in full together with her family. It was also argued that as she had not been diagnosed with an illness requiring her to inform the Superintendent for Public Health, no quarantine order could legally be imposed on her.

But after noting the appellant’s arguments, the court itself raised ex-officio the nullity of the proceedings against her as the Local Enforcement System Agency did not appear to have the power to enforce the regulations under which she had been found guilty.

Deciding the matter, Magistrate Victor Axiak pointed out that according to Article 3 of Subsidiary Legislation 595.14, which establishes LESA, the agency’s remit was to “provide for the enforcement of any law, regulation or bye-law, the enforcement of which has been delegated to regional committees, local councils or to such other local or regional authorities as are designated by the Local Government Act ...’”

The magistrate observed that the enforcement which had been delegated to local councils and regional committees is regulated by Subsidiary Legislation 363.41 (“Local Councils and Regional Committees (Delegation of Enforcement) Order”) that states that the enforcement of contraventions listed in the Schedule to the Commissioners for Justice Act, was a function thereby delegated to each Local Council in relation to contraventions, listed in the First Schedule to the Order, committed in its locality or to the Joint Committee or Regional Committee with regards to contraventions that are committed in any locality falling under its under its responsibility.

The court noted that the appellant had been accused before the Commissioner for Justice of having committed an offence regulated under Subsidiary Legislation 465.12 (“Enforcement of Directions relating to Quarantine Regulations” – LN 72 of 2020), which although listed in the Schedule to the Commissioners for Justice Act, and therefore falling within the competence of the Commissioners, was not listed in the First Schedule to the Subsidiary Legislation 363.41 (“Local Councils and Regional Committees (Delegation of Enforcement) Order”).

“Therefore, as things stand no local council or regional committee (or agency for local enforcement) has any power to enforce or bring forward proceedings against any person accused of breaching the Enforcement of Directions relating to Quarantine Regulations,” ruled the court.

“It is an established legal principle that “ubi lex voluit dixit, ubi noluit tacuit” and given that such power is not expressly provided for in the law, which being a subsidiary legislation is a special law, then the Local Enforcement System Agency cannot bring forward proceedings and prosecute persons for a breach of the regulations in question.”

The Court declared that the proceedings against the appellant to be null and void and revoked the decision of the Commissioner for Justice, acquitting her of the charge brought against her.

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