The Malta Independent 26 May 2024, Sunday
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The ECHR at 70

Kevin Aquilina Sunday, 17 September 2023, 08:54 Last update: about 9 months ago

On 3 September 2023 the European Convention on Human Rights celebrated its 70th anniversary of its entry into force.

Andrew Z. Drzemczewski opines that on 23 October 1953 the United Kingdom had extended the Convention’s applicability to the Maltese territory: ‘Malta attained independence on 21 September 1964 (Malta Independence Order, 1964). On the same day the Constitution of Malta became effective (Malta Government Gazette no 11,688, 18 September 1964). Under the terms of an agreement between the Maltese Government and the United Kingdom on 31 December 1964, Malta assumed, as from 21 September 1964, many international obligations and responsibilities which had rested with the Government of the United Kingdom, but these did not include obligations under the European Convention on Human Rights’.

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In so far as the Maltese and the United Kingdom Governments were concerned, Malta had – with effect from 21 September 1964 (Independence Day) – succeeded to all obligations and responsibilities of the Government of the United Kingdom which arose from any valid international instrument ‘insofar as such instruments may be held to have application to Malta’. However, in so far as the ECHR was concerned, it could not be stated by Malta that it had succeeded to it as the Convention itself did not admit such procedure: on the contrary, adherence could only be achieved through ratification or accession.

This meant that between 23 October 1953 and 20 September 1964, the European Convention for the Protection of Human Rights and Fundamental Freedoms applied to Malta as part of United Kingdom territory so much so that these rights and freedoms were enshrined in the 1961 Blood Constitution but that following independence, although Malta had its own Constitution with contained these rights and freedoms in Chapter 4 thereof from a municipal law point of view, Malta was no longer bound by the provisions of the said Convention from a public international law angle.

Then, on 29 April, 1965, Malta acceded to the Council of Europe and on 12 December, 1966, signed the Convention and its First Protocol with some reservations as to Articles 2, 6(2) and 10 of the Convention and Article 2 of the First Protocol. On 23 January 1967 Malta ratified the Convention and four of its Protocols. However, on ratifying the Convention, Malta did not recognize the right to individual petition the Strasbourg organs and the compulsory jurisdiction of the European Court of Human Rights. The text of the declaration and reservations made by the Government of Malta when ratifying the Convention and Protocol are reproduced in the Second Schedule of the European Convention Act. It was only twenty-one years later – on 30 April 1987 – that the Maltese Government decided to ratify then Article 25 of the European Convention so as to permit the right of individual petition and then Article 46 to recognize the compulsory jurisdiction of the court. It also implies that the United Kingdom no longer had responsibility over Malta.

Thus, the position between 30 April 1987 and 19 August 1987 was the same as that obtaining in the United Kingdom prior to the enactment of the U.K. Human Rights Act, 1998. The European Convention was not part of Maltese municipal law and it had only persuasive authority upon the courts. Decisions of the European Court of Human Rights applying the said Convention and originating in Malta could be however enforced in Malta as foreign judgements according to the provisions of articles 826 to 828 of the Code of Organisation and Civil Procedure. Indeed, Maltese Courts could not apply the European Convention because it had not been incorporated by means of an Act of Parliament into Maltese Law. Nor were the human rights and fundamental freedoms of the Constitution of Malta substituted by those contained in the European Convention and its First Protocol. Nor have they been substituted either after the enactment of the European Convention Act. Malta was internationally bound by the provisions of the European Convention and four of its Protocols in the same way as the U.K. was then bound internationally by them.

This situation was drastically changed on 19 August 1987 in so far as the European Convention and its First Protocol were concerned when Act No. XIV of 1987 was enacted by Parliament. This enactment reproduced certain provisions of the European Convention and its First Protocol in the First Schedule thereof. Contrary to the Constitution of Malta, it did not make any reservation whereby the five Codes mentioned in the Constitution could not be challenged in the same manner as article 48(7) of the Constitution did. But the European Convention Act was enacted like any other ordinary law and, although ordinary laws which run counter to its provisions can be declared null and void by the First Hall of the Civil Court (in its constitutional competence) or – on appeal – by the Constitutional Court, this does not apply to any provision of the Constitution itself which may run counter to one or more of the rights enshrined in the European Convention.

The First Hall of the Civil Court confirmed that the Maltese Courts can declare that ordinary legislation runs counter to the European Convention and its First Protocol provided that such a declaration does not run counter to the supreme law of the land. It is however submitted that the European Court of Human Rights is only interested in determining whether there has been a violation of the European Convention of Human Rights and is not interested in upholding the validity of a law which - although in conformity with the supreme law of Malta - runs counter to the provisions of the European Convention. If such an eventuality were to occur, then the Maltese Parliament would have to amend the Constitution so that the latter may conform with the European Convention of Human Rights.

If the Constitutional Court is requested to enforce the judgement of the European Court of Human Rights declaring a particular provision of the Constitution of Malta to run counter to the European Convention and to its First Protocol, then the Constitutional Court would not be in a position to do so in so far as the Constitution is supreme and the Constitutional Court has been specifically constituted to safeguard and to enforce the provisions of the Constitution and not to annul them. Indeed, the Constitutional Court can, under the Constitution, annul only those provisions of the law which run counter to the Constitution and, under the European Convention Act, annul those provisions of ordinary law which run counter to the Convention.

The Criminal Code has been successfully challenged in terms of the European Convention Act, in several cases. In one case, Parliament had also to introduce an amending law to substitute certain provisions of the Criminal Code relating to bail as the old provisions were declared by the Constitutional Court to violate the European Convention. Even the Code of Organization and Civil Procedure has been successfully challenged under the European Convention Act. So has the House of Representatives (Privileges and Powers) Ordinance and the Civil Code, just to cite two other instances.

Yet the European Convention Act was not without its difficulties. Two come to mind. First, no provision was made in relation to Article 3 of the First Protocol to ensure that it does not contradict section 63 of the Constitution. Second, the Strasbourg Court’s judgments are enforced at the discretion of the Maltese Constitutional Court whose judgment may be reversed by the ECHR.

 

On 9 August 1991, Parliament approved an amendment to article 47(7) of the Constitution which provides that after 30 June 1993, the five Codes aforesaid can be challenged if they run counter to the human rights and fundamental freedoms provisions of the Constitution. Thus, from 1 July 1993 onwards all laws obtaining in Malta can be challenged for inconsistency with the human rights and fundamental freedoms provisions both under Chapter IV of the Constitution of Malta and the European Convention Act even though, in terms of section 47(8) of the Constitution, no person is entitled for any compensation in respect of human rights and fundamental freedoms infringements carried out in terms of a provision of a law operative before the 21 September 1964.

As time went by the Convention was supplemented by various Protocols and Malta signed and ratified quite a number of them. It also incorporated them into the European Convention Act, bar Protocol No 12 on a general prohibition of discrimination that came into effect with regard to Malta on 1 April 2016 but – to-date – has not yet been incorporated into Maltese Law. Perhaps the minister of justice and/or the Parliament Secretary responsible for equality, whosever is the competent authority, should explain why they have not yet prepared a one pager law to comply with Malta’s international obligations in this respect? This lethargy that boils down to crass incompetence is totally unacceptable as it ruins Malta’s reputation amongst Council of Europe member states whilst confirming that the government’s respect for human rights is only lip service. When you remove government’s empty words (blah blah blah) on human rights, the result is that 9 out of 10 human rights cases are lost in Strasbourg.

In order to give effect to the various ratifications of Protocols to the European Convention, the European Convention Act was amended by Act No. XXI of 2002 with effect from 12 October 2002. New article 4A was introduced in the European Convention Act establishing the maximum compensation payable in case of wrongful conviction at €23,293,73 and that: ‘Such compensation shall be fixed by agreement between the party claiming such compensation or failing such agreement by the Civil Court, First Hall, upon an application by the person claiming compensation made within six months of the date when the person’s conviction has been reversed or such person has been pardoned’.

An appeal to the Court of Appeal (and not to the Constitutional Court) lies within twenty days from the Civil Court, First Hall’s judgment.

Act No. IX of 2006 added a new provision to the European Convention Act which provides as follows: ‘6A. Where by a final judgment in a case against Malta the European Court of Human Rights finds that any instrument having the force of law in Malta or any provision thereof is inconsistent with the Human Rights and Fundamental Freedoms, the Prime Minister may, within the period of six months from the date that the judgment becomes final and to the extent necessary in his opinion to remove the inconsistency, make regulations deleting any such instrument or provision found to be inconsistent as aforesaid’.

One understands – even though it is not so declared in article 6A – that this provision does not apply to a case where the European Court of Human Rights has declared a provision of the Constitution as being inconsistent with the Convention. In such case the Prime Minister may not ‘remove the inconsistency’ due to the entrenchment provision of the Constitution which bars him/her from doing so.

The history of incorporation of Human Rights in Maltese Law apart, the record that Malta holds in so far as European Court of Human Rights are concerned is a dismal and very troubling one. Judge Giovanni Bonello – an expert in Human Rights Law and one of the Maltese judges on the Strasbourg Court – has stated that out of 10 cases that end up in Strasbourg Malta loses 9 and wins one only! The implications of Judge Bonello’s statement are twofold: first, the State of Malta does not respect human rights in those cases where it is challenged; and second, the Maltese courts do not provide a remedy in these cases as they would have sided with the Maltese State, not with the individual challenging a state’s breach of human rights. From the latter aspect, further conclusions can be drawn: first, the courts are insensitive to human rights; second, it is not clear whether this insensitivity derives from lack of knowledge of human rights or from other reasons; third, the rate of cases lost in Strasbourg raises important concerns on the independence and impartiality of the judiciary bearing in mind that 9 out of 10 cases are lost by the State in Malta before the European Court of Human Rights.

More worrying than the above is that the failure rate in Strasbourg is consistent meaning that there is no serious attempt being made by the State of Malta to reverse this European record that Malta holds in Strasbourg. Thus, neither the government, nor parliament, nor the judiciary are taking adequate corrective measures to remedy the state’s dismal human rights record in Strasbourg. Even the State Advocate – who continuously defends the state’s human rights violations – has to bear responsibility for this European humiliation that the Maltese have to suffer because of the state’s continuous violation of human rights. Yet although this is an undoubtedly grave and serious matter, there is no concrete initiative being taken by the minister responsible for justice to overturn this bad publicity that Malta is getting at Strasbourg. The European Union has also turned a blind eye on Malta’s rule of law and human rights deficit. With the State Advocate working to justify – instead of setting right – human rights violations perpetrated by state entities, with the minister of justice sweeping the problem under the carpet until one day it will explode in his face, with the three organs of the state lying dormant on the matter, we are thus left to perish. We are doomed to eternity!

 

Kevin Aquilina is Professor of Law at the Faculty of Laws, University of Malta

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