In this article Prof. Tonio Borg examines the Constitutional Court’s
judgments of 18 November 2024 in the XNT and Phoenix cases, which
reversed earlier rulings declaring FIAU’s fining powers
unconstitutional and introduced a controversial shift in
jurisprudence by validating administrative sanctions imposed by
non-judicial bodies, so long as an appeal to a court exists. This
interpretation departs from prior case law affirming that criminal
matters must be adjudicated by a court of law from the outset, as
required by article 39 of the Constitution, and risks undermining
constitutional guarantees of fair hearing and judicial independence.
Prof. Tonio Borg, ‘The FIAU Judgments; A Critical Legal Analysis’ (Online Law Journal, 10 May 2025).
The two judgments1 delivered on 18th of November 2024 by the Constitutional Court, revoking the judgments of the First Hall of the Civil Court which had ruled that the laws allowing the Financial Intelligence Analysis Units (FIAU) to impose hefty administrative fines were unconstitutional, have raised their fair share of controversy. This contribution analyses these judgments namely the XNT case and the Phoenix case
Although this contribution will criticize certain important aspects regarding the merits, the judgments positively and thankfully rejected two important preliminary pleas. The first one, frequently raised by the State Advocate, was that there existed adequate alternative remedies for the alleged breach, namely an appeal to the Court of Appeal in its inferior jurisdiction from the decision to impose the administrative fine by FIAU. The apex court in Malta, following its own judgment in Insignia,2 decided that in matters where the constitutional validity of a law is at stake, there is no other remedy except litigation before the courts of constitutional jurisdiction. The second preliminary plea raised was to the effect that the laws empowering FIAU to impose hefty fines were required by EU law. The Constitutional Court remarked that the requirement to impose an administrative fine arose from a Directive which left it up to the member states as to how one should impose such pecuniary penalty.
These were the positive points decided by the Court. There were, in my view, however, several negative conclusions. First of all, the judgment does not refer at all to the legal history behind the special wording found in article 39 of the Constitution; and why such wording is different from that contained in Article 6 of the European Convention on Human Rights which had been signed fourteen years prior to the promulgation of Maltese constitution. The difference lies in the fact that. while the European Convention allows criminal proceedings to be decided by an organ which is not a court of law, article 39 of the Constitution requires that any criminal case has to be decided by a court of law and nothing else.
The origin of this distinction is not a mere coincidence or lapsus. One finds the raison d’ etre in the Report prepared by Sir Hilary Blood3 before the promulgation of the 1961 Constitution under British rule. When the 1947 Constitution was revoked after the April 1958 riots, speeches were delivered at public meetings to the effect that those who collaborated with the British when Malta was under direct colonial rule (1958-61), would be adjudicated not by a court of law but by a people’s tribunal. It was for this reason that Sir Hilary recommended that a special provision be introduced in the 1961 Constitution, which was then reproduced verbatim in the 1964 Constitution, to the effect that once a Chapter on enforceable human rights was going to be inserted in the 1961 Constitution, then criminal proceedings should only be conducted before a court of law, while civil proceedings could be adjudicated by a court or an adjudicating authority.
In view of threats of trial by “people’s tribunals”…the provisions of section 21(2) of the Nigerian Constitution might be strengthened by substituting for the word “court” a form of words confining the jurisdiction to try criminal offences to the existing courts of Malta.4
In Police v Emmanuel Vella5 the Constitutional Court made it clear that this was not an error or fruit of chance. The legislator wanted that in criminal cases only the courts of law would decide such cases, namely, the superior or inferior courts. It stated:
The conclusion is self-evident: according to the Constitution the term ‘court’ and ‘tribunal’ or ‘adjudicating authority’ do not mean the same, and should not be used inter-changeably. Where the Constitution wanted to mean tribunal or adjudicating authority the Constitution said so; and therefore, when it uses the term court alone, one cannot extend the meaning of this word to include things which it intended to exclude; for where it wanted to include them it said so.…the Constitution in article 47(1) states also that for the purpose of interpretation of Chapter IV, relating to fundamental rights and freedoms of the individual.
The word “court” means also any court of law in Malta other than a court constituted by or under a disciplinary law and in article 33 and 35 of this Constitution includes, in relation to any offence against a disciplinary law, a court so constituted.
This definition clearly shows that the drafter of the Constitution after having, as explained above, drawn a distinction between a court, a tribunal and an adjudicating authority, continued making this distinction when he defined the word court by not including in such definition neither a “tribunal” nor an “adjudicating authority”. It would have been natural to do so had he intended to give the word court an extensive meaning to include also a tribunal or an adjudicating authority. This Court, therefore, cannot agree with what the court of first instance said in the appealed judgment that the word court includes any kind of tribunal or place from where justice is administered.
This point is not mentioned anywhere in the XNT judgment. Consequently, all the references by the Court to the jurisprudence of the European Court of Human Rights which applies a Convention, which expressly allows an authority which is not a court to decide a criminal case, are irrelevant and divert legal attention from the issue at hand, a sort of legal red herring, for our Constitution provides otherwise.
This does not mean that our Constitution runs counter to the European Convention, for the very Convention provides that the member states of the Council of Europe which signed the Convention, the so called High Contracting Parties may grant more rights than those listed in the Convention.6 What they cannot do is to grant less.
It is true that, over the years, a depenalisation process started of certain criminal offences. For example, the competition law allowed that certain activities which were before considered as criminal offences, be regulated and punished by the imposition of an administrative fine . An administrative fine does not bring about a sanction which deprives one of personal liberty if it is not paid, but only constitutes a civil debt which the State may execute. The same occurred in the area of acts which may obstruct the prevention of money laundering, such as for instance, not doing the necessary investigation, due diligence or not keeping one’s books as one should, when one accepts to invest funds given to an entity.
When it comes to interpreting the words “criminal charge”, the European Court has jealously retained the right to decide that, even though it would duly consider the legal classification of an activity by a member state, it would have the final word on the matter; and in this context developed the so called Engels criteria;7 it ruled that factors which would be considered, would be the severity of the sanction and its deterrent effect. All such considerations would assist the court to decide whether a charge was criminal or not; even if the domestic law would have depenalized that activity. This was done so that one would avoid any abuse that, under the pretext of depenalisation, the individual loses the protection of the right to a fair hearing guaranteed by Article 6 of the Convention.
This point arose for the first time in Angelo Zahra;8 namely the issue arose whether an activity depenalized by the legislator could still be considered to be penal in nature according to the Engels criteria. In fact in that case, regarding administrative fines imposed by the tax authorities in Malta, applicant, after having paid such fines, was then charged on the same facts before a court of criminal jurisdiction. The Constitutional Court decided that the administrative fines were of such a nature that ,though they were styled “administrative”, were penal just the same. Consequently, once Zahra had already been subjected to a criminal sanction, he could not undergo fresh criminal proceedings which could impose another criminal penalty for the same fact, and this according to the principle of ne bis in idem.
Now in the XNT case, the Court, in spite of the preliminary plea raised by FIAU that the sanctions imposed by FIAU which amounted to 245,000 euros were not penal in nature, applying the Engels criteria, came to the conclusion that those sanctions were of a penal nature, even though styled administrative. It quoted Harris O’ Boyle and Warwick who wrote:
Criminal has an autonomous Convention meaning. If the classification of an offence in the law of the Contracting Parties were regarded as decisive, a State would be free to avoid the Convention obligations to ensure fair trial in its discretion. It would also result, in this context, in an unacceptably uneven application of the Convention from one State to another.9
While quoting from European jurisprudence to the effect that the nature of a “criminal charge” depended on the legal classification under domestic law, the very nature of the measure and the nature and grade of severity of the sanction,10 the Constitutional Court stated that “these criteria are alternative and not cumulative ones.”
On the basis of these rules and its own jurisprudence, the Constitutional Court in the XNT case came to the conclusion that the sanctions in this case were penal in nature.
From now on, a series of assertions and conclusions of a dubious nature ensue. The first is found in paragraph 84 of the judgment:
The European Court has stated that in administrative proceedings the obligation to a apply Article 6 of the Convention does not mean that an administrative fine cannot be imposed by an authority.
This statement ignored the fact that the Convention contains wording which is different from that found in our Constitution. The European jurisprudence maintains that, at first instance, an authority may impose criminal penalties; but this is so because it is expressly allowed by the Convention in Article 6. However, jurisprudence by the European Court imposed the obligation, for fair hearing purposes, that there has to be a final form of control by a judicial organ. The Constitutional Court in this case came to the conclusion, in contrast with its own pervious jurisprudence, that if there lies an appeal before a court of law, this regularises and sanitizes everything, and there is no need for access to a court of law at first instance. This is in direct contrast with judgments of the same Court in Federation of Estate Agents11 and Rosette Thake.12
The danger of this conclusion is obvious: in future one might have a tribunal which is not a court of law which can condemn persons to imprisonment; and so long as there lies an appeal before a court of law from such a decision, everything would be proper and regular.
The Constitutional Court in the XNT case stated that in Federation there was no conclusion that there had been a breach of Article 6. However, this happened because the same court in that case had concluded that there had been a breach of article 39 of the Maltese Constitution, a point which the Constitutional Court conveniently omitted to mention. In Federation it stated:
Confirms the judgment where it found a breach of article 39 of the Constitution and, therefore, declares that articles 12A, 13, 13A and 21 of Chapter 379, in so far as they grant to the Director the power to issue a decision regarding a breach of competition law and impose fines and other measures if he finds that there has been a breach, are null.(emphasis added).
The error lies here: that while Article 6, so long as there is a revision by a court, allows criminal sanctions even by an authority which is not a court, this is not possible, at any stage, under article 39 of the Constitution. In fact in Federation the Court ruled that:
There remains the issue whether such shortcoming can be regularised by a right of appeal to the Court of Appeal under article 13A (5) of Chapter 379. The Federation argues that the entire process as to a criminal charge has to take place before a court and that at no stage can there be delivered a judgment or even a hearing conducted regarding a criminal charge before an organ which is not a court. This is correct. (emphasis added)
In Rosette Thake the pronouncement is even clearer. In that case, the law relating to financing of political parties used to allow the Electoral Commission, which is not a court of law, to impose hefty administrative fines, if it felt that any provision of the law relating to the financing of political parties had been breached, with a right of appeal from such decision before a court of law. When this law was contested, the court of first instance had declared the law valid since there lay an appeal from the decision of the Electoral Commission to a court of law
The Constitutional Court reversed the judgment of the lower court and found that there had been a breach, because access to a court had to be guaranteed at every stage, including at first instance when the penalty is of a criminal nature . It stated:
67. As to the right granted by the Act that within thirty days the decision of the Electoral Commission may be contested before the ordinary civil courts and eventually before the Court of Appeal, this Court observes that, contrary to what the court of first instance concluded, this does not neutralize or sanitize the lack of constitutional validity of the proceedings before the Commission once the right envisaged in sub article 1 of article 39 of the Constitution triggers off from the moment a person is charged with a criminal offence before the Commission, and is to last until the proceedings come to a conclusion, and not from when the Commission would already have reached its decision.(emphasis added).
This notwithstanding, in XNT the apex court ignored its own jurisprudence. This is being said because it reached this conclusion, namely that an appeal sanitizes the fact that at first instance proceedings were not conducted before a court of law, independently of the argument, which was added later, of the so-called hard core criminal law.
In fact, the Court stated in XNT:
This applies especially in cases of breaches which do not fall in the category of hard core criminal cases.(emphasis added).
Hard Core Criminal Cases
This point had been raised in other cases but was always ignored or set aside by the courts; it was also ignored by Government. The Executive through its majority in Parliament tried twice to remove the right to a fair hearing before a court in cases of hefty administrative fines.
In the first attempt, Government in 2020 proposed Bill No. 166 to amend article 39(1) of the Constitution and allow non-judicial organs to impose administrative penalties. This amendment required, according to article 66 of the Constitution, the support of at least two-thirds majority of the members of the Legislature. The Bill was defeated at third reading since the required qualified majority was not obtained.13 The proposal was controversial in itself: why should Parliament reduce rather than increase the human rights listed in Chapter IV?14
Government, then submitted to Parliament a new Bill, namely Bill No. 198 amending the Interpretation Act (Chapter 249). The Bill attempted to define which penalties are criminal in nature. In so doing it ran counter directly and deliberately to the jurisprudence as established by the Constitutional Court, in direct contrast to the Thake judgment. The Bill stated that if an appeal lay from a decision imposing an administrative penalty, however hefty, to a court of law, then such penalty was not criminal in nature; and consequently, the guarantee of access to a court of law from the very beginning did not apply. In view of strong criticism by a Council of Europe organ, namely, the European Commission for Democracy through Law known as Venice Commission,15 this Bill was never debated and left languishing on the parliamentary agenda until Parliament was dissolved.
One, therefore, asks the question: in the Federation case the activities under the Competition Act were classified as belonging to hard core criminal activity?; and in the Rosette Thake case, breaches of electoral law were hard core? For in both cases the full guarantees of article 39 were applied.
Besides, nowhere in the jurisprudence of the European Court is there any statement to the effect that in cases of non-hard core criminal activity, the guarantees enshrined in Article 6 do not apply, but only that the guarantees under that Article are not applied dans toute leur rigueur.
However, such doctrine can never be applied to article 39 of the Maltese Constitution in order to deprive any person in Malta from the protection of a court in cases of a criminal nature. If one were to apply such doctrine one would reach the absurd conclusion that if one commits a simple contravention such as disposing of dirty liquids in a public street, one enjoys the right that one’s case be heard by a court of law at any stage; but if one is fined by FIAU to the tune of a million euros or is condemned to imprisonment by a public corporation composed of persons appointed by the government of the day and depending on such government for their salaries and tenure, one does not enjoy such access to a court, so long as there lies an appeal to a court of law from the decision taken by the non-judicial authority.
This doctrine aggravates matters when one considers that evidence is usually presented before a court of first instance. The court evaluates the evidence, and the behaviour and actions of witnesses who testify before it. This will now be left within the exclusive discretion of public employees and an authority which, as we shall see, in its constitution does not offer guarantees of impartiality and independence; nor are such guarantees secured in the way FIAU decides matters where a hearing is not even held, let alone a fair one.
The Constitutional Court cynically rebutted this by saying that evidence can be presented on appeal with the permission of the court of appellate jurisdiction. Although this is possible, it is, however, rather uncommon for it to happen. The courts of appellate jurisdiction as a rule never hear again evidence tendered before a court of first instance; indeed, except in cases of manifest error or injustice, they do not even disturb the assessment made by a lower court regarding credibility of witnesses; In fact in a recent case16 the Court of Appeal ruled that:
All evidence has to be presented before a court of first instance and if a party to a case fails to do so it cannot, after judgment is delivered, try and present new evidence to defeat arguments which the court of first instance used on the basis of evidence produced in order to reach its conclusion.17
Hard Core Criminal Activity
With the discovery of this magic formula of non-hard core criminal activity, the Constitutional Court was ready to use this formula to jettison the right acquired over years that in criminal matters only a court can decide such cases; but also that even if at first instance the adjudicating authority such as FIAU is not independent or impartial or does not follow the norms of a fair hearing, the mere fact that an appeal lies to a court of law, regularises everything. The guarantees we were used to and which were confirmed in nine judgments delivered by six different judges at first instance,18 were ignored owing to this formula which is disputed, contested and, in my view, should not have been applied to the XNT case.
This is being said because in several judgments against FIAU, it was decided that not only the law granting the power to a non-judicial organ like FIAU to impose exorbitant fines was invalid, but also that the internal procedure of investigation and adjudication, along with lack of security of tenure and method of appointment of the members of FIAU which decides such cases, did not guarantee a fair hearing or independence or impartiality. This ,therefore, ran counter to article 39 of the Constitution and Article 6 of the Convention which require that where an authority is not a court of law and can decide criminal or civil cases, it still has to be independent and impartial; which explains why XNT have now applied to refer the matter, following the 18th of November judgment, to the European Court of Human Rights.
The jurisprudence of the European Court as to what amounts to hard core criminal activity, and what are the consequences if an activity is not hardcore, and which guarantees arising from Article 6 can be waived, is indeed confusing and conflicting.19 Amongst the criteria established by the court is that the sanction should not cause a stigma on the person receiving it. That one is fined one million euros by a public authority is, indeed, a stigma; so much so that since such fines are published by FIAU on its website, XNT had acquired an interim order20 during the constitutional proceedings, that such reference be removed from the FIAU website until the case is decided.
It is one thing to be given a normal fine amounting to a few tens of euros by the Commissioner for Justice regarding a parking offence, a depenalisation process which never raised any eyebrows since it was introduced in the early eighties; it is completely different if an administrative fine of one million euros is imposed for neglect in keeping one’s books in order or if a due diligence exercise was not performed to prevent possible money-laundering.21
The two cases of the European Court of Human Rights embraced by the Maltese Constitutional Court also raise certain queries:
First of all, the Grande Stevens case22 did not deal with the question whether the imposition of hefty administrative fines were hard core criminal activity or not though en passant it referred to such concept; but the European Court came to the conclusion that there was a breach of Article 6 since there was no oral hearing. The Court ruled that since the facts were contested, the fines were financially severe and there was a certain stigma attached to the sanction, “this was likely to adversely affect the professional honour and reputation of the person concerned” and leaves some kind of stigma!”
The second case referred to by the Maltese Constitutional Court was Jussila23. In Jussila, the European Court ruled that there were activities which did not constitute hard core criminal activity. The case related to a tax surcharge imposed upon applicant amounting to three-hundred and eight euros. The applicant had been denied an oral hearing. Where the criminal case did not carry any significant degree of stigma, then one need not apply the Art. 6 guarantees with their full stringency. Consequently, the need of an oral hearing could be waived in such case. Three dissenting judges begged to differ arguing that such a distinction between hard core, and not, would open the way to arbitrariness.24
The doctrine found in Jussila has been applied either in cases of traffic contraventions such as the duty of registered owners of vehicles to allow their cars to be inspected25 or a minor fine when someone does not obey an order by a public official.26 It is difficult to understand how such cases can be compared with a one million euro fine to prevent money laundering. The danger in such trend in jurisprudence can be seen in the Sancakli 27where a hotel owner was accused of allowing his hotel property to be used a brothel. The fine imposed was relatively minor and did not cause a stigma on the offender. The pretext under which such activity was classified as non-hard core was that the hotel owner was fined for disobeying a police order and not because he was allowing his hotel to be used as a brothel.28
Final Remarks
The Maltese courts have on several occasions stated that they interpret the Constitution and the Convention autonomously, that is to say, they can give an interpretation which is not exactly in line with that of the European Court. They have decided that “determination of the existence or extent of civil rights and obligations” in article 39 of the Constitution includes also human rights cases29 and in Frendo30 decide that the right to a fair hearing applies to the way the State collects taxes such as VAT-in contrast with European Court jurisprudence.
The perils of suddenly introducing the controversial concept of non-hard core criminal activity is evident: it allows too much discretion to the judge and, creates uncertainty. Besides, when one considers the draconian consequences of introducing such a concept overturning several judgments of the lower courts, the apex Court in XNT did not really provide a serious analysis of the concept and why a possible one million euro fine imposed on a commercial company was not hard core; it simply said that such activity was not hard core. Period. Besides, even if such activity was not hard core, there is no explanation why, of all the guarantees contained in article 39, it jettisoned the significant guarantee of access to a court of law in criminal cases, whether hard core or not.
A dissenting voice post XNT
On 12 February 2025, the First Hall of the Civil Court delivered judgment at first instance against FIAU. In Trive Financial Services Malta Ltd v FIAU31 the court wisely and prudently avoided the question of hard core criminal activity but partly deviated from XNT nonetheless; and this is so because it declared as null and void parts of the law and regulations which FIAU uses in reaching its decisions; this was done, not on the basis of whether a non- judicial organ can impose administrative fines of a penal nature, but whether the procedure and the method of how FIAU imposes administrative fines conforms with the rules relating to a fair hearing. The Court listed the following serious shortcomings in the procedures adopted: a) what was supposed to be a supervisory exercise turned into an investigative one without the applicant company being informed; b) the fact that the fine was imposed four years after the so called supervision had taken place at the company’s offices; and (c) perhaps most importantly that the applicant company had been denied doppio esame, for the fact that one could produce evidence at appeal stage was entirely within the discretion of the court of appellate jurisdiction and there obviously lies no appeal from an assessment of the evidence so collected. The composition of the FIAU, entirely dependant in the government of the day shows that the FIAU is neither a court nor a tribunal which is independent and impartial.
Therefore, in virtue of this recent judgment, it was established that the mere existence of an appeal to a court of law from a decision of the FIAU does not regularise the question that an organ at first instance should be independent and impartial and follow the norms of a fair hearing. This was not done by FIAU, though it abided by the law, and ,therefore, the relevant parts of such law were declared null since they ran counter to article 39 of the and Article 6 of the Convention.
Conclusion
This is the currents state of affairs-a veritable confusing one from a legal point of view. It remains to be seen whether this new approach to the validity of the FIAU laws will be followed; or else the apex court in Malta will stubbornly refuse to adopt such reasoning.
References: [1] 51/22, XNT Ltd vs FIAU (CC),18 November 2024 and Phoenix Payments Ltd vs FIAU 18 November 2024. [2] 175/21, Insignia Cards Ltd vs FIAU (CC) 1 December 2021. [3] Sir Hilary Blood (1893-1967). Governor of Ghana (1942-470; Barbados (1947-9); and Mauritius (1949-54). [4] Report of the Malta Constitutional Commission. [5] Constitutional Court 28th June 1983 [6] (ARTICLE 53 : Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.) [7] Engel and Others v. The Netherlands, App nos. 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72 (ECtHR, 8 June 1976). [8] 33/2013/1, Angelo Zahra vs L-Onorevoli Prim Ministru, Constitutional Court 29 May 2015. [9] Harris, O’Boyle and Warbrick: The Law of the European Convention on Human Rights (2nd Edition)(2009) (Oxford University Press). [10] Grande Stevens v. Italy, App no. 18640/10 (ECtHR, 4 March 2014). [11] 97/13, Federation of Estate Agents vs Director General Competition (CC)3 May 2016. [12] 25/17, Rosette Thake noe et vs Electoral Commission (CC)8 October 2018. [13] The Bill was not approved by the House since at its final voting on 14 July 2021, there were not at least two- thirds of all the members of the House of Representatives supporting the said Bill. [14] Tonio Borg: A Right Diminished(STOM)(18 October 2020). [15] 1034/2021, Malta Urgent Opinion on the reform of fair trial requirements related to substantial administrative penalties (5th July 2021) :” As regards the question of whether the planned reform should be achieved through a constitutional amendment or through a change in the interpreting rules contained in the Interpretation Act, the Venice Commission recalls that the “final say” in the interpretation of the Constitution in a given case belongs to the Constitutional Court. The Constitutional Court’s decisions are final and binding and oblige Parliament to repeal/amend the provisions found unconstitutional and to follow the interpretation given by the Constitutional Court. Parliament has nonetheless the power to amend the Constitution to provide for a different interpretation from that provided by the Constitutional Court, provided that the procedure for constitutional amendment is duly followed. The qualified majority required in Article 66.1 of the Constitution for constitutional amendment entails that a broad consensus needs to be found between the parliamentary majority and the opposition, giving the latter the power to participate, supervise and even block the decision on the amendment. Achieving the result of a constitutional amendment in a procedure which requires a simple majority would defeat the purpose of the supermajority requirement in Article 66. To read the interpretative# power of Parliament so widely as to enable it to be used as an alternative to having to use the amendment procedures would open the way for the government of the day easily to circumvent individual rights and other protections set out in the Constitution. It follows that in the opinion of the Venice Commission the reform should be achieved through the amendment of Article 39 of the Constitution [16] 1224/97, Emmanuel Zammit noe v. Charles Polidano noe, Court of Appeal 31 January 2014). [17] “il-provi kollha iridu jingiebu quddiem l-ewwel qorti u jekk parti tonqos li taghmel dan, ma tistax , wara s-sentenza tipprova tressaq provi godda biex twaqqa’ l-argumenti li l-ewwel qorti fuq il-provi prodotti uzat biex waslet ghall-konkluzjoni taghha.” [18] Phoenix Payments Ltd v FIAU et (FH)(30 March 2023)(51/22) (Mme Justice A. Demicoli); Insignia Cards Ltd v. FIAU et (FH)(24 May 2023)(175/21) (Mr. Justice L. Mintoff); Lombard Bank Malta Plc v. FIAU et (FH)(5 June 2023)(394/21)(Mr. Justice G. Mercieca); XNT Ltd v. FIAU et (FH)(13 July 2023)(300/22)(Mme Justice J. Vella Cuschieri); Dr Roderick Caruna v. FIAU et (FH)(28 September 2023)(11/22)(Mr Justice T. Abela); N Trust Ltd v. FIAU et (FH)( 30 January 2014)(247/22)(Mme Justice J. Vella Cuschieri); Credence Corporate and Advisory Services Ltd v. FIAU et (FH)(29 May 2024)(129/21) (Mr. Justice I. Spiteri Bailey); Vivero Ltd v. FIAU et (FH)(27 June 2024)(114/21) (Mr Justice T. Abela); Truevo Payments Ltd v FIAU et (FH)(27 June 2024)(579/212)(Mr Justice T. Abela). [19] For an in-depth study of this trend, see Karner Markus: Procedural Rights in the Outskirts of Criminal Law : European Union Administrative Fines “ in Human Rights Law Review (2022)( Vol. 22 1-14) (Oxford University Press). [20] Decree dated 28th June 2022 (FH)(300/22) (Mme Justice Joanne Vella Cuschieri): “As to the lack of remedies regarding the damage , the Court feels as well that it is satisfied about this , owing to the fact that the applicant company may find itself in a position where it cannot operate and its very existence be threatened – a real risk in view of the repercussions which such publication of the imposed fine may have on its operations especially vis a vis third parties.” – Maltese original : Illi dwar l-irrimedjabilita tal-hsara l-Qorti tqis ukoll li din hija sodisfatta u dan stante li l-possibilita’ li s-socjeta’ rikorrenti tispicca ma tistax topera u l-ezistenza per se taghha tkun mhedda hija wahda reali hafna in vista tar-riperkussjonijiet li tali pubblikazzjoni tal-multa mposta jista’ jkollha fuq l-operat taghha partikolarment ma’ terzi.” [21] (n.17):“Administrative fines have a deterrent and punitive nature since they go beyond mere compensation. The need for effective enforcement of regulations have brought about astronomical fines , which are likely to trigger the severity criterion. On the other hand, these fines often pertain to specific areas of law, which has on occasion yielded a non-criminal classification based on the limited scope of application. This criterion was originally meant to delimit disciplinary offences from criminal law, and it does not take into consideration that a limited scope of application to is not uncommon for criminal offences." [22] Grande Stevens v. Italy, App no, 18640/10, (ECtHR, 4 March 2014). [23] Jussila v. Finland, App no. 73053/01, (ECtHR, 23 November 2006). [24] Partly Dissenting Opinion Of Judge Loucaides Joined By Judges Zupančič And Spielmann:”I find it difficult, in the context of a fair trial, to distinguish, as the majority do in this case, between criminal offences belonging to the “hard core of criminal law” and others which fall outside that category. Where does one draw the line? In which category does one place those offences which on their face value do not appear severe, but if committed by a recidivist may lead to serious sanctions? I believe that the guarantees for a fair trial envisaged by Article 6 of the Convention apply to all criminal offences. Their application does not and cannot depend on whether the relevant offence is considered as being in “the hard core of the criminal law” or whether “it carries any significant stigma”. For the persons concerned, whom this provision of the Convention seeks to protect, all cases have their importance. No person accused of any criminal offence should be deprived of the possibility of examining witnesses against him or of any other of the safeguards attached to an oral hearing. Moreover, to accept such distinctions would open the way to abuse and arbitrariness…Therefore, once it was found (correctly) that the relevant proceedings in this case were criminal, the requirement of a public hearing in respect of them became a sine qua non. The failure to fulfil that requirement amounts, in my opinion, to a breach of Article 6 of the Convention.” [25] Kammerer v Austria, App no. 32435/06 (ECtHR, 12 May 2010). [26] Sancalki v Turkey, App no. 1385/07 (ECtHR,15 May 2018). [27] (n.24). [28] 49. The Court notes furthermore that the administrative fine imposed on the applicant was a modest one and did not carry a significant degree of stigma. It cannot agree with the applicant's claim that the proceedings were of considerable personal significance to him in that they were concerned with a nefarious crime and had a negative impact on his reputation In that connection, the Court points out that although the domestic court maintained in its reasoning that the applicant was found to have provided premises for prostitution in his hotel, the offence he was eventually found guilty of was failure to obey the orders of an official authority. Moreover, despite the applicant's allegation to the contrary, according to the Criminal Records Act, administrative fines such as the one at issue are not registered in the criminal records (see paragraph 26 above).(emphasis added) [29] Police v C. Ellul Sullivan, Constitutional Court, 5 April 1989, Vol LXXIIII 37. [30] 592/97, Anthony Frendo vs Attorney General et, Constitutional Court, 30 November 2001. [31] 352/23, Trive Financial Services Malta Ltd vs FIAU, Civil Court (First Hall),12 February 2025 (Mr Justice L Mintoff).
