I’m the good news first kind of guy. So, a court yesterday did something which has accurately been described as very rare. It allowed for a tool provided by human rights legislation to be used to stop someone suffering an alleged human rights violation while a court decides whether they’re suffering a human rights violation.
The term is, I’m told, ‘interim measure’: that’s a temporary halt on some action by the state which if allowed to carry on would make complaining about a human rights violation pointless as by the time a decision is secured it would be too late to do anything about it.
Let me give another example of the rare application of an interim measure. The Maltese government wanted to force out of the country migrants without giving them any meaningful opportunity to make a case that they had been eligible for asylum. It would have been pointless to hear a complaint that their rights were breached if their case was heard after they were forced to leave. So, the Strasbourg court agreed to order that the migrants are not thrown out before their complaint is heard.
Maltese courts have the power and the responsibility to apply the rules of interim measures in human rights cases as well. But they are loathe to do it. They avoid it like the plague. Perhaps they worry that by ordering a temporary hold on a government action they might seem to be deciding the government is wrong even though the case brought against the government would not have yet started being heard. And there’s hardly a worse position to be in, it sometimes appear, than for a judge to be seen to be deciding against the government.
Sometimes the rejections of interim measures are terribly frustrating. They allow the government to continue the abuse and by the end of the case any moral victory on the back of a declaration of breach of rights would be hollow and patently too late.
Judge Francesco Depasquale awarded an interim measure last night to stop the execution of a prison sentence on someone who is alleging they weren’t given a right to a fair hearing. The logic of the decision is that by the time the complainant gets a decision that says he had not been given a fair hearing he would have served most of his two-year prison sentence. And if he loses the case, there would be no harm done as he can be taken back to prison to finish serving his time.
The fact that this interim measure was awarded is the good news. It’s a “very rare” decision that should, frankly, be taken more often when people ask for interim relief while the court takes its time to decide whether they’re right or wrong about the merits of their complaint. It should not be this rare. The courts are not fulfilling their mission simply by agreeing with a complainant that their rights were breached. Their mission is only truly fulfilled if, whenever it is still possible, the courts protect the complainant from the abuse of their rights and stop that abuse from happening.
What’s the bad news? The bad news is that at face value at least – which is the only value at this preliminary stage that the decision to grant the complainant interim relief could have been based on – interim relief, this treasure of human rights protection, has been used on a white-collar criminal with some skill in using the justice system against itself.
The man concerned was convicted for involuntary homicide of two women buried under the rubble of a construction disaster. Their deaths have been shown to have been a direct consequence of his orders for works on his property, next door to the victims, despite professional advice he was given that what he wanted done was dangerous and against the law.
He appealed and his conviction was confirmed, though a three-year prison sentence that the first court imposed on him was reduced to two years for the rather lame reason that since his sentencing he’d behaved well.
From when the incident happened in 2004 to the first decision by a court to send him to prison, 5 years went by. Tale as old as our justice system: a first-instance decision should not take that long but our process has for a long time been slow. The person concerned did not complain but did appeal from the decision and he was not imprisoned pending his appeal.
The appeal, filed after the 2009 first instance decision, was decided last November, 12 years later. But before you spit out your coffee, note that, if the reporting is accurate, the case was held up by the appellant himself while he pursued the matter in the civil courts. Since it was his case, the court waited for him to do his thing and then heard his appeal in his own sweet time.
Now the court deciding that he is let out of prison pending his human rights complain has not yet heard the evidence to decide whether the years and years he spent waiting for a decision that would send him to prison were the fault of his state (and therefore a breach of his right to timely justice) or a direct consequence of his own choices (and therefore respecting his right not to have criminal proceedings prejudice his interests in a civil court). The facts are yet to be heard in evidence and we can, and we should, withhold comment until after the decision is known.
The good news is that someone who believes their rights were breached by the state in the process of sending them to prison can get a court to halt the punishment while they make their case. The bad news is that this country has not managed to keep in prison, even for a two-year jail term, a man found definitively guilty of causing the deaths of two people because of greed and negligence, 19 years after his victim’s lives were cut short.
This really is not working.