The authorities may take measures in private property in order to safeguard public health and within the pubic interest. This was held in a judgement delivered by the First Hall of the Civil Court, in its constitutional jurisdiction, presided by Judge Anna Felice, Il-Pulizija -v- Robert k/a Robbie Borg on 29 March 2022.
This case referred, since Borg is claiming that Article 26(i) of the Public Health Act and Legal Notice 5 of 2006 are in breach of his fundamental human rights as enshrined in the Constitution and the European Convention. The accused, in his criminal proceedings, asked that this issue be referred to the constitutional courts. The prosecution held that allegations that Borg is suffering from inhuman and degrading treatment is frivolous, as the Human Rights European Court in Strasbourg held that inhuman and degrading treatment must be either bodily harm or intense physical or mental suffering.
The prosecution also claimed that the allegation that Borg was not allowed to enjoy his property, because if he does not pay for tests taken in his hotel, the hotel will be closed, were not sustainable. The case concerns complaints the Health Department received from the European Working Group for Legionella Infections that there were cases Legionella in connection to Borg’s hotel. The Department investigated and the hotel owner was ordered to take care of the water system. The Department was informed that the water system was cleaned, but complaints persisted until an enforcement notice was issued in March 2009 to close the water system in the hotel Tests were still showing positive to Legionella. According to the Legal Notice 465.03, it is the owner is responsible to pay for the tests and in this case Borg did not choose himself which laboratory these tests should be carried out. Therefore, the allegation that there is a breach of his fundamental human rights is frivolous especially when there is a serious risk of public health.
The Court analysed the evidence brought before it. Borg is accused of failing to pay the expenses incurred by the Public Health Department for the analysis of samples of water to see whether there were cases of Legionella. Borg had signed a declaration accepting to pay these. In August 2008 the Department investigated a case of legionnaires disease. 15 samples were taken from the water system in the hotel 10 months later there was another case. This time Borg was asked to pay for the tests. Many of the test resulted positive to Legionnaire’s disease. In February 2009 more tests were carried out and number of them were still positive. Borg signed again to pay for the tests. In March 2009 the water system of the water system was disinfected but just the same the tests resulted positive. More disinfection took place and then finally the tests resulted in the negative.
In June 2009, the Department issued two invoices for the tests carried out at the hotel which amounted to €7,646.40. It was explained that every test cost €80. Since Borg failed to pay, criminal proceedings was instituted.
Borg claimed that he had to sign to declaration that he would pay for the tests, because he was threatened that the hotel would be closed down. Furthermore, he complained that he was not allowed to contest the invoices.
The Court then went through the relevant legislation in the Public Health Act and the Constitution and the European Convention Act and concluded that there is no evidence showing that Borg was threatened closure if he did not accept the pay for the tests. The evidence should that an enforcement order was issued for the hotel to close because the tests showed repeatedly that there was Legionella in the water system. Legionella can result in death. There is not case of breach of human rights for degrading and inhuman treatment and for the deprivation of enjoying one’s own property, when the authorities discovered that there was a dangerous situation in the hotel’s water system. The authorities’ intervention in his use of his private property, was in the public’s interest. The hotel was open when there was a dangerous situation.
The authorities were carrying out their duty in save guarding public health. The Court commented that it could not understand how Borg is complaining that he had to pay the tests when it was he who failed to disinfect well the water system. Furthermore, it seemed that Borg failed to provide plans of the water system and therefore, the authorities had to carry out a larger quantity of tests to cover the whole system.
There is not breach of Borg’s fundamental human rights, once the criminal proceedings are being held by an independent and impartial court, and that the accused had access to the Court. The proceedings were held in his presence and the prosecution did not have any advantage over the accused. The accused was being assisted by a lawyer.
The Court then moved to dismiss the case.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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