Published on 14 March 2022
FIRST SECTION
Application no. 14179/21
Victoria CASSAR
against Malta
lodged on 9 March 2021
communicated on 23 February 2022
SUBJECT MATTER OF THE CASE
The application concerns the Port Workers Board’s (‘the Board’) refusal to register the applicant in the prospective port workers register, and therefore her inability to inherit her father’s port-worker license once he retired in 1992, because she was a female. Despite the applicant having lodged ordinary proceedings challenging the regulations and seeking damage, should the license be attributed to others, in 1994 the license was attributed to her uncle.
In 1999 the ordinary proceedings were suspended awaiting the outcome of constitutional redress proceedings wherein the applicant complained of discrimination. By a judgment of 2 November 2001, confirming a first‑instance judgment, the Constitutional Court found a violation of Article 14 (in conjunction with Article 3 – degrading treatment). It ordered the Board to allow the applicant to register as an eligible person to be considered for the post of port worker after her father’s retirement.
The applicant’s registration did not ensue despite various exchanges of correspondence, including a judicial protest in 2003 whereby the applicant requested to be registered. The Board insisted that registration could not be retroactive to 1992, that is, antecedent to the Constitutional Court judgment. Proceedings before the ordinary jurisdictions were thus resumed in 2004. In November 2004 the parties agreed, before the court, that the applicant could be registered as a prospective worker or a person eligible to be considered as port worker, after her father’s retirement in terms of the Constitutional Court judgment, once certain criteria would be satisfied, including a medical test and the examination of her conduct. Nevertheless, the applicant was never registered or called to undergo a medical exam. In 2007 the applicant reached forty-five years of age and thus no longer fulfilled eligibility criteria.
In 2012 the applicant was awarded 799,168 euros (EUR) in damage suffered as a result of the discrimination, plus costs. However, the judgment was revoked on 26 May 2017, by the Court of Appeal which considered that the applicant had not registered with the Board, and thus was not entitled to civil damage.
A further set of constitutional redress proceedings ensued, whereby the applicant raised, inter alia, once again a complaint under Article 14 in conjunction with Article 3 in relation to the determination by the domestic courts in her case (which led her to remain uncompensated despite a finding of a violation and a change of law). By a final judgment of 7 October 2019 the Constitutional Court dismissing her claim considered, inter alia, that the applicant had obtained redress in the form of restitutio in integrum by means of the declaration which allowed her to register herself ex tunc, with retrospective effect to the date of her father’s retirement which was antecedent to the date when her uncle had been given the licence, she had however not done so.
QUESTIONS TO THE PARTIES
1. Is the applicant still a victim of the violation of Article 14 read in conjunction with Article 3 of the Convention upheld by the domestic courts?
2. Did the Port Workers Board’s refusal to register the applicant in the prospective port workers register amount to discrimination contrary to Article 14 read in conjunction with Article 3 of the Convention?
3. Did the action or inaction of the Port Workers Board interfere with the enforcement of a judicial decision in favour of the applicant, preventing its execution, in breach of Article 6 § 1 of the Convention?