Victims of human rights violations regularly petition the courts for redress. In some cases, however, redress cannot wait until after a final judgment. Instead, litigants file for interim relief: a court order to halt or prevent the alleged violation pending the final outcome of the proceedings.

In Malta, the constitutional courts tend to follow the rules governing interim measures before the European Court of Human Rights, which is itself competent to issue interim measures under Rule 39 of its Rules of Court. Locally, interim measures are regulated chiefly by consistent judicial practice on the basis of provisions in the Constitution of Malta and European Convention Act that grant the constitutional courts the widest powers of redress in human rights cases.

Judgments of the Maltese courts clarify that a successful request for interim relief must satisfy two criteria. First, there must be a prima facie breach of a fundamental right. Second, the continuation of the breach must result in grave prejudice or irreparable harm to the person concerned.

The first criterion requires the court to assess whether, on a preliminary analysis of the facts, there exists a potential breach of the person’s human rights. The analysis here tends to be superficial and at first glance: the courts will not determine the merits of the case in an interim measure procedure. In fact, as a rule they do not grant relief which could prejudge the merits or tie their hands in some way on the merits.

The second criterion is that of irreparable harm. This phrase refers to harm that is imminent and cannot be addressed through a final judgment on the merits. Most judgments tend to refer to a “serious threat to life or limb” that requires urgent measures to preserve the status quo. However, interim measures have also been granted in other cases, where the situation required urgent intervention by the courts to prevent the perpetuation of a violation. The reason for this criteria is to avoid creating a situation where, by the time final judgment is delivered, the harm has already been done.

According to prevailing Maltese case-law, the two criteria are cumulative and not alternative to each other. Consequently, showing a prima facie breach is not enough if no irreparable harm is demonstrated.

It is possible to appeal the decision to issue or reject an interim measure. However, this requires the court’s prior permission. Any appeal filed without such permission is considered null according to law. The appeal is heard by the Constitutional Court.

A successful request results in the court issuing the desired interim measure. The status quo is preserved, or an impending violation is prevented. The interim measure remains in force until the final judgment where the merits of the case are decided. It is also possible for a party to request variations in the interim measure due to changes in circumstances. Once a final judgment is delivered, the interim measure ceases to have effect.

_{The contents of this article are intended for informational purposes only and should not be construed as legal advice on any matter. Neither do they constitute or create a lawyer-client relationship with any reader. Said contents are not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. No responsibility is accepted for any actions taken or not taken on the basis of this publication.}

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