Casino advert case referred again to First Hall

The Constitutional Court yesterday revoked a judgment of the First Hall of the Civil Court in a suit filed by the editor of The Sunday Times, and remitted the case back to the first court.

The judgment was delivered in the case filed by Laurence Grech against the Attorney General, the Police Commissioner, the Prime Minister and the Finance Minister.

The court heard that in January, 2003, Mr Grech, as newspaper editor, had been charged before the Magistrates' Court with having, on December 17, 2000, published an advertisement informing the public about a casino without the necessary authorisation.

Mr Grech was also charged with having published an advertisement encouraging the public to gamble in a casino.

In his constitutional application, Mr Grech claimed that the provisions of the Gaming Act which banned advertisements about casinos were a restriction on the right to freedom of expression, and were also discriminatory, as such adverts could be published for distribution overseas or in places mainly frequented by tourists.

He asked the First Hall of the Civil Court to annul the said provisions of the Gaming Act.

The first court had however ruled that Mr Grech's application was frivolous and vexatious.

It had noted that Mr Grech had, in the course of the criminal proceedings against him, requested that a constitutional reference be made by the Magistrates' Court to the First Hall of the Civil Court on the grounds that his fundamental human rights were violated by the provisions of the Gaming Act.

On July 6, 2004 the Magistrates' Court had dismissed this request, and had ruled that the restrictions on advertising were based upon public order and were not contrary to human rights.

The First Hall of the Civil Court ruled that once the court before which the constitutional issue had been raised had decided that the matter was frivolous and vexatious, that decision was binding upon the parties and could not be raised again before another court.

Mr Grech appealed from this judgment to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The court said there were two procedural issues that had to be decided.

One was whether the ruling of the Magistrates' Court was binding upon the First Hall of the Civil Court. The second was whether there was the possibility of an appeal from the judgment of the First Hall of the Civil Court in this case.

Any law that restricted or limited access to the courts, particularly in the area of human rights, had to be given a restrictive interpretation.

Moreover, in order for an appeal to be barred, the court delivering the first judgment had to have ruled that the constitutional case was "simply frivolous" or "simply vexatious".

It was clear that the first court had simply rested totally upon the declaration issued by the Magistrates' Court. The First Hall of the Civil Court had not even examined whether that court of criminal jurisdiction had examined the merits properly.

The First Hall of the Civil Court had ruled that the issue raised by Mr Grech was frivolous, and had not declared that the issue was "simply frivolous".

In the light of this, the Constitutional Court found that the first court had not made a suitable analysis of Mr Grech's requests. Thus, one could not say there was no right of appeal from the first court's judgment.

Referring to case law, the Constitutional Court added that when a court ruled that a request for a constitutional reference was simply frivolous, then the aggrieved party could not have recourse to procedures before the First Hall of the Civil Court on the same merits.

The appellate court added that any court (except the First Hall of the Civil Court and the Constitutional Court) was obliged to respect the exclusive jurisdiction of the First Hall of the Civil Court in matters concerning alleged human rights violations.

This principle applied to all cases except those where the court of criminal jurisdiction found that the request for a reference was simply frivolous and/or vexatious.

It resulted that the Magistrates' Court had, when dismissing Mr Grech's request for a constitutional reference, ruled that the provisions of the Gaming Act were based on public order. No Magistrates' Court could do this, for by so doing it was taking upon itself the jurisdiction of the First Hall of the Civil Court.

The Constitutional Court revoked the judgment of the First Hall of the Civil Court and remitted the case back to that court for a decision according to law. The court added that it had received the benefit of learned verbal and written submissions by the lawyers to the parties.

Lawyer Mario de Marco was counsel to Mr Grech and lawyer Susan Sciberras was counsel to the authorities.