EHRM, 24-07-2014, nr. 60908/11, nr. 62110/11, nr. 62129/11, nr. 62312/11, nr. 62338/11

On 7 May 2009 these applicants instituted separate constitutional redress proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention in that the State had failed to protect them from unnecessary risks to their health, which also constituted inhuman treatment and an interference with their private and family life. They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights, to liquidate that amount, and to order that this pecuniary redress be paid individually to the applicants (‘Tikwantifika kumpens xieraq bħala rimedju għal ksur tad-drittijiet fuq indikati jew mil-liema minnhom, tillikwida dan l-ammont, u tordna li dan ir-rimedju pekunjarju jithallas individwalment lir-rikorenti’).

In reply to the Government's objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under Maltese law the ordinary civil remedies available did not apply to non-pecuniary damage (known in the domestic system as ‘moral damage’), but solely to pecuniary damage; they claimed that these types of damage were independent of each other.

In four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction — namely, the Civil Court (First Hall) in its constitutional jurisdiction — declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non-exhaustion of ordinary domestic remedies. That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability. It considered that according to the Court's case-law, namely Zavoloka v. Latvia (no. 58447/00, § 40, 7 July 2009), there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases.

By four judgments of 11 April 2011 the Constitutional Court upheld the first-instance decisions. It considered that the Government, as an employer, could be sued under civil law for their failings. It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings. It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis. The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if, after a final judgment, they still felt that the breaches of their rights had not been adequately redressed. It held that given that neither the Convention nor national law provided for compensation for non-pecuniary damage in such cases, the ordinary remedy would have been effective. In any event, according to the court, in their constitutional application, the applicants made no specific mention of non-pecuniary or moral damage, having claimed compensation for pecuniary damage only.

On 19 April 2010 these applicants, who are the heirs of the deceased Mr Attard, also instituted proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention.

In reply to the Government's objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings, the applicants submitted that under Maltese law the ordinary civil remedies available did not provide for non-pecuniary damage but only for pecuniary damage; they claimed that these types of damage were independent of each other.

By a judgment of 30 September 2010 the Civil Court (First Hall) in its constitutional jurisdiction declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii, thereby in effect dismissing the claims of the applicants on the grounds of non-exhaustion of ordinary remedies. In its analysis of the principles governing the exercise of the above-mentioned powers under the Constitution and the European Convention Act, the court noted, inter alia, that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy. It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence, so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights, then the court should lean towards exercising its powers. Nevertheless, it considered that what the applicants were ultimately requesting was a sum of money by way of damages. Given that ordinary remedies under the Civil Code could have resulted in an award of monetary compensation, the applicants should have pursued those remedies before instituting constitutional redress proceedings.

In a judgment of 11 April 2011 the Constitutional Court upheld the first-instance decision for substantially the same reason indicated in paragraph 17 above.

The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, in respect of actions for damages, read:

Article 1031

Article 1032

Article 1033

Article 1045

Article 1046

Article 46 of the Constitution of Malta, in so far as relevant, reads:

Similarly, Article 4 of the European Convention Act, Chapter 319 of the laws of Malta, provides:

Maltese case-law relating to the examination of a case by the constitutional jurisdictions was summarised in the case of Dr Mario Vella vs Joseph Bannister nomine, Constitutional Court judgment of 7 March 1994. These guiding principles were reiterated in several other judgments including Mourad Mabrouk vs the Minister for Justice and Home Affairs and the Principal Immigration Officer, judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 4 February 2009. The relevant guiding principles read as follows:

In the judgment of the Constitutional Court in the names Philip Spiteri vs Sammy Meilaq nomine of 8 March 1995 it was further held that:

The same was reiterated in the more recent judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 5 June 2014 — still subject to appeal — in the name of Judge Carmelo Sive Lino Farrugia Sacco vs The Honourable Prime Minister, the Attorney General and the Commission for the Administration of Justice. In that same judgment the court also held that:

The Dock Safety Regulations (Subsidiary Legislation 424.03), were enacted in 1953 and amended in 1965, 1966, 1977, 1991, 1999 and 2009. The regulations make no mention of asbestos or occupational hazards caused by carcinogenic substances and agents.

The Work Places (Health, Safety and Welfare) Regulations (Subsidiary Legislation 424.09) entered into force on 9 February 1987. Part III concerns the prevention and control of occupational diseases and reads as follows:

Regulation 16

Regulation 17

Regulation 18

Regulation 19

Regulation 20

The same regulations provided for notification of accidents connected to the place of work, and in so far as relevant the relevant provisions read as follows:

Regulation 22

Regulations 23

Regulation 24

These regulations also provided for their enforcement and for penalties in the event that they were not complied with.

Further emphasis was placed on the duties of employers in the Factories (Health Safety and Welfare) Regulations 1986 which entered into force in 1987 and eventually became part of the General Provisions for Health and Safety at Work Places Regulations, which were amended in 1996, 2002 and 2003. Article 49 of the 1986 text, in its most relevant part read as follows:

In 1994, a prohibition on the importation of asbestos fibres came into effect by means of subsidiary legislation (S.L. 37.11) to the Customs Ordinance.

On 28 June 2002 the Prevention and Reduction of Environmental Pollution by Asbestos Regulations (S.L 504.30, subsidiary legislation to the Environment and Developing Planning Act) came into force, containing in substance the provisions of the Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos.

Finally, Legal Notices 122 and 123 of 2003 enacted, respectively, the Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations and the Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations which, like the regulations mentioned in paragraph 31 above, constitute subsidiary legislation under the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta.

In the case Mary Pellicano proprio et nomine vs Francis Spiteri nomine, Commercial Court judgments of 30 August 1989 and 27 June 1990 (see paragraph 10 above), the court established the responsibility of Malta Drydocks for the death of Paul Pellicano and awarded damages consisting of lucrum cessans and damnum emergens as provided by Maltese law. It found that the applicant had worked at the dock yard for decades until his death as a result of asbestosis. The applicant had been employed at the time when blue asbestos was still used at the ship repair yard and where the only precautionary measure taken was the use of masks, which in any case were considered of inadequate quality by the court-appointed experts. The court shared the conclusions of the experts who took the view that certain precautions had been implemented but they did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time. More specifically, the use of dangerous asbestos had remained the norm, the ventilation system was old and inadequate, the masks were inefficient, and other shortcomings had been apparent.

In Godfrey Buhagiar vs Malta Shipbuilding Company Limited (another state-owned enterprise which in 2003 merged with the MDC to become Malta Shipyards Ltd.), judgment of the First Hall (Civil Court) of 11 October 2001, it was held that the fact that an employee had consented to work in a dangerous environment did not imply acceptance of responsibility for any harm which he might suffer. Therefore, if an employee continues to work despite the fact that the employer has failed to provide a safe working environment, the employer cannot plead the employee's consent as a defence.

The Government submitted that the applicants had not exhausted domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8 of the Convention, concerning the Government's failure to protect the applicants rights' under those provisions. They had failed to institute an ordinary civil action, opting instead to attempt constitutional redress proceedings at the conclusion of which their claims had been dismissed for non-exhaustion of ordinary remedies. The Government noted that in their application the applicants had themselves cited the Pellicano case — which had been successful at the ordinary level — and the compensation award granted in that case by the Commercial Court.

The Government further relied on Aytekin v. Turkey (23 September 1998, § 84, Reports of Judgments and Decisions 1998-VII) in which, having taken into account the combination of the criminal, civil and administrative law remedies available, and in particular the prospects offered by the criminal proceedings for obtaining redress in respect of the death of the applicant's husband, the Court had not exempted the applicant in that case from the requirement to exhaust such remedies. The Government also made reference to the case of John Sammut and Visa Investments Limited v. Malta ((dec.), no. 27023/03, 28 June 2005), in which the Court had held that an action in tort could have resulted in an award of civil damages and that the aggregate of remedies could have redressed the applicants' second grievance.

Referring to Articles 1030–1033 of the Civil Code concerning an action in tort, the Government submitted that, like any other person, they could, through their representatives, be held liable for damages. Indeed the State had on numerous occasions been held liable for the payment of damages by the domestic courts (various examples were submitted to the Court). The Government referred in particular to the case of Carmena Fenech et vs Chairmen of the Malta Drydocks noe et (Court of Appeal, 3 December 2010), which concerned asbestos exposure and where the Government had been ordered to pay approximately EUR 103,000 in damages.

The Government conceded that — like any employer — they were obliged to provide a safe working environment and noted that they had been sued at various times for allegedly failing to provide such an environment. They cited Francis Busuttil vs Sammy Meilaq nomine (First Hall, Civil Court, 9 December 2002) and Gatt vs Chairman Malta Drydocks (sic.) (First Hall, Civil Court, 9 December 2002), in which the courts had found Malta Drydocks liable for damages because it had failed to provide a safe working environment and had been negligent in the maintenance of tools, thereby causing an accident that had resulted in the claimants' permanent disability. Similarly, in a comparable case, the State-owned airline, Air Malta, had been held liable for damages. Indeed, domestic courts had found the Government liable for damages when the governmental act complained of constituted a breach of duty which was classified either as a negligent act or as a failure to carry out duties properly. Moreover, in Godfrey Buhagiar vs Malta Shipbuilding Company Limited (11 October 2011) the domestic courts had held that the fact that an employee consented to work in a dangerous environment did not mean that the employee accepted responsibility for any harm which he might suffer, with the result that the employer could therefore not raise the plea that the employee accepted such working conditions.

As to the applicants' claim that compensation for non-pecuniary damage could not be awarded in an ordinary action, referring to Zavoloka v. Latvia (cited above) the Government noted that in that case the Court had found that there was no absolute obligation to award such damages in circumstances such as those in that case. Moreover, while it was true that the law did not provide for compensation for non-pecuniary damage, known as ‘moral damage’ in the domestic context (except for a few specific circumstances), and that such damages were not awarded in actions for tort, the way compensation was calculated allowed for the inclusion of non-pecuniary damage, although this was not mentioned. One such example was awarding loss of future earnings, based on a loss of opportunities, which in the Government's view was a veiled type of ‘moral damage’, that is to say, non-pecuniary damage as understood in the Convention case-law. Moreover, the Government considered that civil law did not prohibit such damage and cited two examples (Dr J Pace noe vs The Prime Minister, Civil Court (First Hall), 1 June 2012, and Mario Gerada vs The Prime Minister, Civil Court (First Hall), 14 November 2012) in which the applicants had been awarded compensation for ‘moral damage’ in cases involving breach of contract and unfair dismissal respectively.

The applicants contended that an ordinary civil action against the Government as employer for material damage would not have been capable of addressing the multiple issues arising from the breaches of Articles 2, 3 and 8. Accepting that the Government could, like private individuals, be found liable in a tort action, the applicants submitted that an ordinary action of that nature could not have established the State's responsibility in line with Convention standards reflected in the Constitution. It followed that their complaints could therefore only be raised before the courts with constitutional jurisdiction as established by Article 46 of the Constitution (see ‘Relevant domestic law’ above).

Moreover, they noted that according to domestic case-law, in instances where the merits of a case were complex and had aspects which fell under both ordinary and constitutional law, the constitutional action was to prevail (Anthony Mifsud vs Superintendent Carmelo Bonello et, Constitutional Court, 18 September 2009).

The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government's failure to fulfil their positive obligations under the Convention, namely to safeguard a person's life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation. It followed that they were also entitled to compensation for non-pecuniary damage.

An ordinary civil action in tort could only provide for compensation for pecuniary damage, namely damnum emergens and lucrum cessans, the expressly limited heads of damage provided for by Maltese law. In fact, compensation for non-pecuniary damage was not provided for in law, as shown by decades of case-law where judges had repeatedly held that no compensation for non-pecuniary damage could be awarded. Moreover, proposals had recently been made in Parliament to make provision for compensation for non-pecuniary damage in certain cases — proposals which would be pointless if the Government's contention that such damage were not precluded were true. Moreover, an occasional lapse by a good-hearted judge extending the scope of pecuniary damage could hardly be considered the right way of dealing with human rights violations. In the applicants' view the only available remedy was constitutional redress proceedings, which they had unsuccessfully instituted.

Furthermore, the ineffectiveness of such an ordinary remedy was evident in so far as the law (Article 1032 of the Civil Code) provided that no one was to be found liable in the absence of any express legal provision. Indeed, ordinary law did not provide for actions dealing with activities that breached Article 8 of the Convention — a provision which the applicants had also relied on and which, moreover, did not correspond to any constitutionally protected right in Malta.

The applicants argued that the Constitutional Court had dismissed their claims on the grounds of failure to use a remedy that was ineffective. It had, moreover, found that only if the applicants still felt that the breaches of their rights had not been redressed by that remedy could they opt for constitutional redress proceedings. The applicants contended that, although part of their claim could have been addressed by the ordinary courts, the courts with constitutional jurisdiction were not precluded from addressing the case to its full extent. They submitted that in Carmena Fenech vs Chairman of the Malta Drydocks, (cited above) one of the cases relied on by the Government, the claimant (who was the widow of a dry-docks employee who had succumbed to malignant mesothelioma) had been awarded out-of-pocket damages and compensation for loss of future earnings in respect of her husband. Thus, if she had wished to claim any compensation for non-pecuniary damage, she would still have had to lodge another claim with the courts with constitutional jurisdiction. It followed that the applicants had rightly brought their claim before the only court that could have found that there had been a breach of their human rights and awarded the compensation for non-pecuniary damage sought.

The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption — reflected in Article 13 of the Convention, with which it has close affinity — that there is an effective remedy available to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief. It thus represents an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Handyside v the United Kingdom, 7 December 1976, § 48, Series A no. 24).

The only remedies which Article 35 § 1 requires to be exhausted are those which relate to the alleged breach and which are available and sufficient (see McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010), that is to say a remedy that offers the chance of redressing the alleged breach and is not a pure repetition of a remedy already exhausted (see Dreiblats v. Latvia (dec.), no. 8283/07, 4 June 2013). There is no requirement to use another remedy which has essentially the same objective (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999). However, noting the strong affinity between Article 35 § 1 and Article 13, the Court has ruled that if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002-I; Kudła, cited above, § 157; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V; and Rotaru v. Romania [GC], no. 28341/95 § 69, ECHR 2000-V).

It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicants' complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 94, 10 January 2012).

The Court emphasises that the application of the rule must, however, make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule on exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means — amongst other things — that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65–68, Reports 1996-IV).

According to the Court's case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 97–98, ECHR 2002-II and Ciorap v. Moldova (no. 2), no. 7481/06, §§ 24–25, 20 July 2010). The principle applies also where the violation arises from the alleged failure by the authorities to protect persons from the acts of others (see Z and Others, cited above, § 109; and Kontrová v. Slovakia, no. 7510/04, §§ 63–65, 31 May 2007).

In appropriate cases, also when the violation relates solely to Article 8, the Court may still consider under Article 13 that, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see T.P. and K.M. v. the United Kingdom [GC], cited above, § 107).

The Government appear to raise this objection on the basis of three arguments: firstly that the Convention did not provide for a right to compensation for non-pecuniary damage and that therefore an ordinary action in tort would have sufficed, but the applicants failed to pursue it; secondly, even assuming that there was a right to compensation for non-pecuniary damage, the applicants could still have had a chance of obtaining it — subject to the good will of the judge — in ordinary tort proceedings, which the applicants did not institute; and thirdly, they appear to invoke the effectiveness of an aggregate of remedies, which the Court understands as comprising an ordinary action in tort which could have awarded compensation for pecuniary damage plus a subsequent constitutional redress action which could have awarded compensation for non-pecuniary damage.

As transpires from the general principles and the case-law of the Court already cited, in the circumstances of the present case concerning, inter alia, complaints under Articles 2 and 3, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress accessible to the applicants. The same must be held in respect of the complaint under Article 8 which in this specific case is closely connected to the said provisions.

As to the ordinary civil proceedings in the form of an action in tort, the Court has no doubts about the possibility of bringing such an action against the Government and about the prospects of success of such an action as also transpires from the case-law submitted. Nevertheless, the Court notes that an action in tort which is perfectly capable of awarding material/pecuniary damage does not in general provide for an award of non-pecuniary damage (‘moral damage’ as understood in the Maltese context). While it is true that the Government submitted two recent examples of such damages being awarded, they were unable to identify a legal provision for awards of such non-pecuniary damage. Moreover, against a background of decades during which the domestic courts have consistently interpreted Article 1045 of the Civil Code (see paragraph 22 above) as excluding non-pecuniary damage, and in the light of the fact that one of these two judgments (delivered by the same judge) has been appealed against by the Government and is still pending before the Court of Appeal, an ordinary civil claim for damages in tort cannot be considered to be a sufficiently certain remedy for the purposes of providing any non-pecuniary damage which may be due for such breaches (see, mutatis mutandis, Aden Ahmed v. Malta, no. 55352/12, § 59, 23 July 2013). The Court further notes that loss of opportunity, to which the Government referred, is a type of pecuniary, and not non-pecuniary, damage. Lastly, it does not appear that the ordinary court in such an action would have had the competence or authority to give any other form of redress relevant to their complaints.

In so far as the Government pleaded that there existed an aggregate of remedies which the applicants did not exhaust, it is true that the Court has sometimes found under certain conditions that an aggregate of remedies sufficed for the purposes of Article 13 in conjunction with Articles 2 and 3 (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 338, ECHR 2011 (extracts)). This concept generally refers to a number of remedies which can be taken up one after the other or in parallel and which cater for different aspects of redress, such as a civil remedy providing for compensation and a criminal action for the purposes of satisfying the procedural aspect of Articles 2 and 3 (ibid., § 337). The Court has also encountered the notion or system of applying for different heads of damages through different procedures and found no particular problem with such a system (see Dreiblats, cited above), both being available options.

Turning to the present case, the Court acknowledges that an action in tort could appropriately address the issue of pecuniary damage (see paragraphs 22 and 63 above). The Court also considers that the remedy provided by the courts exercising constitutional jurisdiction provides a forum guaranteeing due process of law and effective participation for the aggrieved individual. In such proceedings, courts exercising constitutional jurisdiction can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. These courts can also make an award of compensation for non-pecuniary damage and there is no limit as to the amount which can be awarded to an applicant for such a violation (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no. 26771/07, § 69, 5 April 2011, in relation to Article 1 of Protocol No. 1, and Zarb v. Malta, no. 16631/04, § 51, 4 July 2006, in relation to Article 6). The ensuing judicial decision will be binding on the defaulting authority and enforceable against it. The Court is therefore satisfied that the existing legal framework renders the constitutional remedy capable, in theory at least, of affording, inter alia, appropriate compensatory redress concerning both pecuniary and non-pecuniary damage.

The domestic system thus offers one legal avenue which would have provided solely for pecuniary damage and another one which allowed for a finding of a violation, provided for all heads of damage, and, moreover, could have afforded any other means of redress relevant to the complaints at issue. The Court observes that it does not transpire that in such cases national law necessarily requires that ordinary civil proceedings be undertaken as a sine qua non before the institution of constitutional redress proceedings, and neither has this been claimed by the Government. The same was in fact held recently by the Civil Court (First Hall) in its constitutional jurisdiction (see paragraph 26, in fine, above). The Constitutional Court's decision, and, before that, the similar decision of the Civil Court (First Hall) in its constitutional jurisdiction, declining the exercise of its jurisdiction was therefore not mandatory under procedural rules, or in accordance with any well-established case-law to that effect, but rather was a matter of discretion, that is to say it was based on the judgment of the judges sitting on that bench, as provided for in the Constitution (see relevant domestic law). It follows that there is nothing legally incorrect about the rulings of the constitutional organs, and the use of an ordinary remedy before the constitutional redress proceedings is not only customary but also desirable in order to avoid burdening the constitutional jurisdictions unnecessarily with cases. It may be that such an aim would be better achieved if the ordinary courts had the power to award also non-pecuniary (‘moral’) damage. However, even though in the Maltese legal system the ordinary remedy was limited in scope, it cannot be considered ineffective if followed by constitutional redress proceedings, and therefore the existence of an effective aggregate of remedies cannot be denied.

Nevertheless, in the present case the Court notes that the Constitutional Court's decision seems to have been based on a very broad reading of the Court's case-law. The Court notes that, in Zavoloka it held, solely, that there was no right to non-pecuniary damage in circumstances such as those of that specific case, where the applicant's daughter had died as a result of a traffic accident due to the negligence of a third party and where no responsibility, whether direct or indirect, could be attributed to the authorities.

Furthermore, in connection with the specific circumstances of the present case, the Court notes that the applicants (apart from the family of Mr Attard and Mr Dyer) were found to have pleural plaques in their lungs, were experiencing physical difficulties and were prone to malignant mesothelioma (as occurred in the case of the deceased Mr Attard) and they were challenging the Government for having failed to protect them against such negative consequences. Mr Dyer although not affected to date was at risk of suffering the same fate. For the purpose of seeking redress, they were confronted with the two possibilities available under the Maltese legal order, namely

Consequently, in the circumstances of the present case and particularly in the absence of any pre-existing mandatory legal requirements ensuing from law or well-established case-law requiring the institution of civil tort actions before recourse to the constitutional organs (in circumstances such as those of the present case), the Court considers that the applicants cannot be held to blame for pursuing one remedy instead of two. Moreover, such an action would have also served the interests of economy of proceedings given that — in any event — the applicants would have been bound to go before the constitutional organs to obtain the full range of redress which they claimed.

The Court also notes that in their applications before the constitutional jurisdictions the applicants concerned requested the court to quantify a fair amount of compensation for the breach of their rights, to liquidate such amount and to order that this pecuniary redress be paid individually to each applicant (see paragraph 14 above). The Court considers that this general wording used by the applicants does not specifically exclude, as the Constitutional Court seems to have held (see paragraph 17, in fine, above) non-pecuniary damage as understood in the Court's case-law. On the contrary it must be taken as including both pecuniary (‘material’ damage, consisting under domestic law of damnum emergens and lucrum cessans) and non-pecuniary (‘moral’) damage, the term ‘pecuniary’ used by the applicants meaning simply ‘monetary’ and therefore before the domestic courts the relevant applicants' request cannot be said to have been deficient.

In the specific circumstances of the case, the Court is therefore satisfied that the national judicial authorities were provided with the opportunity to remedy the alleged violations of the Convention but failed to do so. Consequently, from the Court's perspective, the applicants' institution of constitutional proceedings sufficed in the present case for the purpose of exhaustion of domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8.

The Government's objection is therefore dismissed.