Maltese citizens have been denied full protection against discrimination in local courts for the past decade because the government failed to incorporate a key international human rights treaty into national law, the Ombudsman said on Wednesday.
In a statement marking the 10th anniversary of Malta's ratification of Protocol No. 12 to the European Convention on Human Rights (ECHR), Ombudsman and former judge Joseph Zammit McKeon said that although Malta signed up to the protocol in 2015 and it came into force on April 1, 2016, it has still not been transposed into Maltese law.
As a result, individuals who believe they have been discriminated against by a public authority cannot rely on the protocol before Maltese courts. Instead, they must take their case directly to the European Court of Human Rights in Strasbourg - a route that is far more complex, costly and time-consuming.
Zammit McKeon described the omission as a serious and longstanding failure that has left a major gap in Malta's legal framework.
"This is a serious shortcoming that remains unaddressed till this very day, despite repeated calls by the Office of the Ombudsman in its public statements in Malta and abroad, in its reports and annual Ombudplans," he said.
"Depriving persons from seeking redress before the Maltese courts because Protocol 12 is not part of the laws of Malta is a fundamental concern that remains unresolved."
Protocol No. 12 establishes a general prohibition of discrimination, extending beyond the narrower protections currently available under Maltese law through the ECHR. At present, discrimination claims can only be brought when they are linked to another specific protected right, such as property rights or the right to a fair hearing.
The protocol, however, creates a standalone right against discrimination, meaning that no public authority should be able to discriminate against an individual in the enjoyment of any right provided by law.
If incorporated into Maltese legislation, the protocol would allow people who feel they have been discriminated against by state entities - such as government departments or local councils - to seek redress directly before Maltese courts.
Without that legal step, the Ombudsman said, Maltese courts remain unable to enforce the protocol, undermining the principle of subsidiarity, which holds that effective remedies should be available at national level before cases are taken to Strasbourg.
"Subsidiarity presupposes that persons should be enabled to seek effective protection within their own national legal systems before turning to Strasbourg," the statement said.
"Because Protocol 12 is not part of the laws of Malta, persons seeking protection have to turn to the ECtHR directly to the exclusion of Maltese courts."
The Ombudsman called on Parliament to act without further delay and finally enshrine Protocol No. 12 in Maltese law.
"The matter should therefore be addressed, remedied and resolved without further unnecessary delay," he said.