Prisoner stays in prison while his rights case is heard
The First Hall of the Civil Court refused on 10 April 2026 to release a prisoner serving a final sentence while his constitutional case is heard, and set a quick hearing instead. It matters to lawyers who challenge final criminal judgments on human rights grounds.
In G.J. vs L-Avukat Tal-Istat, the First Hall of the Civil Court (Constitutional Jurisdiction) refused on 10 April 2026 to order the release of a prisoner as a provisional measure while his constitutional case is pending. Mr Justice Aaron M. Bugeja held that the request failed the tests of a prima facie breach and irreparable harm, and all the tests must be met. Instead, the court set the main case for hearing on 23 April 2026.
The facts
G.J. is serving a prison sentence imposed after a jury trial and an appeal that ended in a final judgment of the Court of Criminal Appeal. He had been held for more than 16 months when, on 30 March 2026, he filed a constitutional application with a request for immediate release from Corradino Correctional Facility, under conditions if the court saw fit.
His complaint is that the jury was misdirected on lex mitior, the principle that an accused benefits from a change to a milder law. He argued that, correctly applied, it would have let him raise a defence under article 227(a) of the Criminal Code (Chapter 9 of the Laws of Malta), which could have capped his sentence at two years.
He also argued that the appeal court, instead of ordering a new trial, put its own findings of fact in place of the jury's. The State Advocate opposed the request.
What the court held
The court listed the conditions for a provisional measure: a real and serious case, extreme urgency, a prima facie breach of a fundamental right, irreparable harm if the measure is refused, and no other ordinary remedy. “Dawn ir-rekwiżiti huma kumulattivi u mhux alternattivi” (These requirements are cumulative and not alternative), so such a measure is granted only in exceptional circumstances.
Urgency was the applicant's strongest point, because each day of allegedly unlawful detention is a continuing loss of liberty. The court held that urgency alone cannot decide the request, since it exists in almost every case of imprisonment.
The prima facie test was the main obstacle. The Court of Criminal Appeal had already examined and rejected the complaint of misdirection. Once a judgment becomes res judicata, the law presumes it correct. The court held that finding a prima facie breach would “jammonta għal attakk kollaterali fuq sentenza finali ta’ appell qabel ma jinstema’ l-meritu” (amount to a collateral attack on a final appeal judgment before the merits are heard).
The court added that a judgment can be set aside only by another judgment of a competent court, not by a party's allegation that it breaches rights. The argument that the appeal court replaced the jury's findings belongs to the merits of the constitutional case, not to an interim request.
On irreparable harm, the court held that imprisonment under a final judgment is not irreparable harm for this purpose. If it were, any convicted person could suspend a sentence by filing a constitutional case. A constitutional court that later finds a breach can shape a suitable remedy, including compensation for any period served unlawfully.
The court did not rule on the strength of the lex mitior argument, which it must still hear. Following an earlier constitutional appeal, it chose a fast hearing over release. It gave the State Advocate seven days from notification to reply and ordered the applicant to pay the costs of the interim procedure.
Why it matters
A prisoner who challenges a final criminal judgment on constitutional grounds should not expect release while the case runs, however serious the complaint. Counsel should press instead for an early hearing, and prepare the claim for a remedy, including compensation for any time served in breach.
Where it sits
Provisional measures in constitutional proceedings are exceptional relief. The decree sets them against res judicata and against the presumption that judgments are given rite et recte, that is, in observance of the law and of legal procedure, including the protection of human rights. That presumption can be rebutted, but only in proceedings brought for the purpose.
The court drew on the case-law of the European Court of Human Rights on jury trials, which calls for caution when an appeal court replaces a jury's findings of fact. It also drew on that court's distinction between ordinary errors of fact or law and a flagrant denial of justice, a threshold the court described as extremely high.
The decree cites those Strasbourg judgments, and earlier Maltese decisions on requests for release pending a constitutional case, without giving their dates in the text. It accepted in principle the view that an interim request identical to the main claim forces the court to decide the merits early. It left room for cases where interim relief is legally possible and necessary.
Source
First Hall of the Civil Court (Constitutional Jurisdiction), 10 April 2026, 102/2026/1