Malta by virtue of it being part of the United Nations and its constitution, provides protection against discrimination. Discrimination shall be any act conveying an unequal treatment based on race, place of origin, political opinions, colour, creed, sex, sexual orientation or gender identity. The protection afforded by Maltese law relates to both provisions of the law, treatment by persons, public officials, or public authorities. Therefore, it is an indomitable right with strict consequences when violated.
It is a constitutional right and therefore, merits a court with constitutional competence to decide the matter. Nonetheless, Maltese Law bestows discretion to the Courts. This is because the Civil Court shall have original jurisdiction to hear such causes but it is allowed to decline a cause if it satisfied that there is an adequate means of redress. In Seychell vs. Grech pro et noe[1], the Court stated that the human rights’ articles within the Constitution of Malta shall not be used as a means to bypass normal procedural means or remedies.
However, there are other circumstances which may lead the Court to believe that only it is the adequate means of redress. This was an instance faced by the Court in D’Anastas vs. L-Avukat tal-Istat et[2], where it stated “…r-rikorrent qed jallega ksur tad-drittijiet fundamentali tiegħu b’dana li hija din il-Qorti biss fis-sede kostituzzjonali tagħha li għandha l-kompetenza fuq tali talbiet…[3]”.
A person who has his rights breached shall be subject to a remedy; such remedy may be either in the form of restitution or damages awarded to the injured party. Restitution is based on the notion of restitutio in integrum. This principle elaborates on the notion that a person shall be restored to the position or state he or she was previously in, prior to the contested act. However, this principle is not always applicable due to the lapse of time and other factors.
When restitution is not possible the Court proceeds to assess the possibility of awarding damages. There are two forms of damages:
Damnum emergens relate to actual losses. This is very straightforward for the Court since the Court just has to award the value of the thing damaged. An example is when a motorcycle is written off due to it being involved in an accident due to the fault of the other party. The damnum emergens awarded in such case by the Court would be the value of the motorcycle and any other equipment which may have been damaged due to the accident.
Lucrum emergens is based on the potential loss of the injured party had the contested act not happened. Hence, a calculation needs to be done by the Court in relation to the amount lost and the number of years for which the injured party shall continue to suffer due to the act. This would typically entail the application of the Court’s discretion to decide on the number of years a person ought to live, or the number of years the person ought to suffer from the contested act, etc.
Most available means of redress do not provide the ability to recover non-pecuniary damages, or to the degree being sought by the injured party. Hence, they may refer to the Courts with constitutional competence.
When awarding damages the Court shall assess the circumstances before it to provides an equitable remedy. This is seen in the case D’Anastas vs. L-Avukat tal-Istat et[4], where the Court stated the following “il-Qorti ma tistax teskludi li seta’ kien hemm il-possibilità li anki li kieku l-proċess tal-għażla ma kienx imċappas bl-element tad-diskriminazzjoni, r-rikorrent mhux neċessarjament kien ser jiġi magħżul għall-kariga…[5]”.
In this case the Court was assessing discrimination within the employment ambit; and by virtue of the cited reasoning of the Court, it reduced a percentage of the requested amount at its discretion. This Court also awarded non-pecuniary damages which were suffered through discrimination within the selection process of a role.
Author: Neil Gauci
For information or assistance with discrimination related matters, please contact us at info@gtg.com.mt
[1] Salvatore Seychell vs. Angelo Grech pro et noe, Constitutional Court, 10 April 1967.
[2] Raymond D’Anastas vs. L-Avukat tal-Istat et, First Hall Civil Court, 3 October 2024.
[3] English translation: the plaintiff is alleging a breach to his fundamental human rights and it is this Court in its constitutional competence that has competence to decide this claim.
[4] D’Anastas [n2].
[5] English translation: The Court cannot exclude the possibility that even should there not have been discrimination, the plaintiff could have still not been chosen for the role.