Article 46 of the Constitution provides for the enforcement of protective provisions by stipulating detailed provisions for seeking redress for violations of human rights. It lays down that if a person alleges that any of the provisions in Articles 33 to 45 of the Maltese Constitution ‘has been, is being or is likely to be contravened in relation to him’, he may apply to the Civil Court, First Hall, for redress.
In addition to the protections envisaged under the Constitution, procedures for the enforcement of Human Rights and Fundamental Freedoms are also envisaged under the European Convention Act, Chapter 319 of the Laws of Malta. One must also appreciate and consider Legal Notice 279 of 2008 which establishes rules of good order for court practice and proceedings concerning constitutional matters. In human rights cases, the aggrieved person must file the application before the First Hall of the Civil Court as a court of first instance presided over by one judge. It is at the appeal stage, that is, at second instance, that the case is heard before the Constitutional Court composed of three judges.
The objective of this paper is to highlight, and elaborate on, the various procedural obstacles which an aggrieved individual may face when seeking an appropriate remedy to a violation of his human rights.
The requirement for an applicant to prove juridical interest when commencing human rights actions stems from (a) Article 46 of the Constitution which requires that an applicant must prove that a violation has occurred in relation to him, and (b) Article 116 of the Constitution. The latter article, which stipulates that a right of action alleging that a law is invalid on any grounds other than human rights, appertains to all persons without the need to show any personal interest in support of the action. This is actio popularis. This idea, however, is not reciprocated when one challenges a law as being in violation of human rights. Reasoning a contrario sensu, if contesting the validity of a law on grounds which are not human rights does not require proving personal interest, it stands to reason that a right of action on grounds of human rights does require a personal interest – the plaintiff must prove juridical interest.
In Emilio Persiano vs Commissioner of Police and Kevin Chircop vs Joseph Chircop, the Court explained that the principle of direct, legitimate, and actual juridical interest must be observed by any person commencing an action. The interest must contain the existence of a right and the need to safeguard that right from any attempt by others to infringe upon it.
Proving one’s juridical interest does not in and of itself create a procedural pitfall; it is rather the interpretation and extent of such interpretation that creates difficulties. This procedural obstacle is attributable to the inadequate differentiation between the notion of juridical interest under civil law and under public law. In our legal system, particularly in the civil realm, the First Hall of the Civil Court in its judgment of Aquilina vs Demicoli referred to an earlier case and expressed that one’s interest must be:
- ‘juridical’ – the claim has to contain at least a hypothesis of the existence of a right which has been infringed;
- ‘direct and personal’ – ‘direct’ meaning the interest is related to a contestation about such right or its consequences. ‘Personal’ meaning that it concerns the plaintiff, except in the popular action;
- ‘actual’ – it must emanate from an actual state of an infringement of a right, meaning an actual violation of the law which consists in a positive or negative condition against the enjoyment of such right which lawfully belongs to, or is claimed by, the claimant of such right.
To illustrate an example of when these principles are pertinent: if an issue arises between neighbours regarding a dividing wall, the person living at the end of the street cannot institute a case since he would not satisfy the requirements of having juridical interest. The only persons who have such an interest are those living on either side of the wall. This strict civil law interpretation of the principle of juridical interest cannot be imported lock, stock, and barrel for matters of public law, and therefore the question which arises is: Should one apply a civil law notion to public law actions and interpret the said notion according to the strict rules of civil law actions even in human rights actions?
The procedural pitfall that juridical interest presents becomes highlighted when one compares the traditional and narrow interpretation under the Constitution, which is followed by the Maltese Courts, with the liberal understanding envisaged by the European Convention on Human Rights (‘the Convention’) and adopted by the European Court of Human Rights (‘ECtHR’).
Article 46(1) of the Constitution indicates that a person who alleges a breach of his rights under Articles 33 to 45 must also prove that such breach ‘is being or is likely to be contravened in relation to him’. On the contrary, Article 34 of the Convention denotes the notion of a victim of an infringement of human rights. In Karner v Austria, the ECtHR expressed its opinion that, for the mechanism of victim status to be put into motion and fulfil the objectives it is aimed towards, that is, the protection of rights, ‘this criterion cannot be applied in a rigid, mechanical, and inflexible way.’
It is therefore evident that the Convention exhibits a more liberal approach in interpreting juridical interest than the Constitution in the sense that, before the ECtHR, an individual need not prove that he was personally and directly affected or aggrieved by an alleged violation of a right. In Klass v Germany, the applicant alleged that the mere existence of the law on surveillance was in breach of his right under the Convention. The government’s defence focused on the fact that since the applicant’s phone was not subject to bugging, the applicant was not a victim and, therefore, did not have the appropriate juridical interest to seek redress. The ECtHR disagreed and elaborated that for one to be deemed a victim, it is enough that there is a reasonable likelihood that one becomes a victim. The same line of reasoning was followed in Dudgeon v United Kingdom whereby the Court held that the ‘law violates their rights by itself […] if they run the risk of being directly affected by it’.
To illustrate a comparison in approaches, one must refer to Michaud v France.The applicant, a lawyer, claimed that a law binding lawyers to raise and report any suspicious transactions for money laundering purposes breached lawyer-client privilege and violated Article 8 of the Convention. The Bar Council, which enacted such a law, held that he was not directly and personally impacted by the legislation since no action was commenced against him. Nonetheless, the ECtHR viewed him as a victim since he belonged to a class of people likely to be directly affected by the legislation. If this case were to happen in Malta tomorrow, basing oneself on previous case law, there is a high probability that the Court would reject the applicant’s case based on a lack of juridical interest, since he would fail to prove direct, personal, and actual interest. This is where the procedural pitfall becomes evident. In Malta, the applicant would not have a means to address a law which is potentially in breach of his rights.
Acting in accordance with the strict civil law sense of juridical interest only results in unnecessary hindrance to procedure. Although in civil matters, it makes perfect legal and logical sense to require, on the part of the plaintiff, juridical interest for the institution of an action, this may not always hold good for the special nature of the human rights actions. Being dependent on traditional legal theories of juridical interest may have the effect of stifling the possibility of such actions, given the level of burden of proof.
When Parliament enacts a law, any person in Malta who perceives that law as being against human rights should be allowed to challenge its constitutional validity without having juridical interest in the matter, or at least, the notion of juridical interest should be interpreted more liberally so as to include non-governmental organisations who rarely have a direct, personal interest in any human rights case. When courts apply the civil law notion of juridical interest to a public law matter in its strictest sense, there is a potential risk of having a situation where nobody has the expected juridical interest to institute constitutional proceedings and thus, change is never effected. This is an impediment for courts to determine cases and deliver judgments which may bring about essential legislative changes to rectify the breach. This was exactly the situation with agricultural leases whereby landowners were forced to continue a landowner-tenant relationship with a pittance of rent being paid. Had anyone been able to institute constitutional proceedings addressing this issue, there would have been a judgment declaring the law on agricultural leases unconstitutional and in breach of human rights after a couple of years, and not have the law amended only last year.
The notion of potential victim, as understood by the Strasbourg Court, was formally recognised in the Anna Mallia case where plaintiff was deemed to enjoy juridical interest in a case alleging that the new procedure for the appointment of members of the judiciary breached human rights. Although applicant had not applied to be a member of the judiciary, nor did she commit herself to do so in the future, the First Hall of the Civil Court ruled that she was still a potential victim.
At a European level, as has already been discussed, an especially liberal approach is being embraced allowing more people the opportunity to allege breaches of their fundamental human rights and seek the appropriate redress. Considering that the Convention is part of Maltese law and any reference of a human rights case from Malta to Strasbourg would be interpreted in light of the liberal notion of the victim status, it is only appropriate that the Maltese Courts align themselves with, and follow in, the steps of the ECtHR.
Human rights are bestowed on a person merely by virtue of being born; they are basic rights that every single person enjoys simply because they are human. This means that, unlike ordinary rights, they are not conferred by the State – the State does not give you your fundamental human rights and, therefore, the State cannot deprive you of said rights either. The role of the State vis-à-vis human rights is simply to act as a guardian.
Legal development also indicates that certain rights are also attributed to legal persons – companies also have their rights under the Constitution and under the Convention. Of course, not all rights are applicable (such as the right to life), but other rights (for example, the right to property) may be resorted to. Therefore, any person, natural or legal, may file a constitutional action seeking redress for breach of fundamental rights and freedoms. The issue which arises is, who to sue – who is the proper defendant in a human rights violation action? This presents itself as a procedural pitfall because it places serious implications for filing constitutional cases against the government and its respective authorities and departments since the proper defendant is not always so easily identifiable.
Previously, there was the issue concerning whether or not individuals and associations are bound by human rights, that is, whether these types of actions can be instituted against private individuals and companies. Judge Emeritus Giovanni Bonello, on this matter, emphasizes that human rights are a matter between you and the State, and ‘only the State can breach your fundamental rights. That is, the government, the legislature, and the judiciary, acting through their agents.’ He illustrates the following example: if a private person kills another private person, that homicide, in and of itself, does not merit a constitutional case based on a violation of the right to life. The victim can never commence such action against the offender. The only remedy available against the perpetrator is that of a civil or criminal nature. The victim of a private human right violation may sue the State and the State alone, and only if the State has failed to put in place measures to prevent, investigate, and punish private actions that harm individuals.
Now that it has been established that human rights actions are to be instituted against the State, the question which remains is: who is the proper defendant vis-à-vis government representation?
Article 181B of the Code of Organization and Civil Procedure (‘COCP’) provides guidance on this matter. It holds that the judicial representation of the Government vests in the head of the government department under whose charge the matter in question falls, not the Prime Minister nor the Minister. In those cases where, due to the nature of the claim, the action cannot be instituted against one or more heads of department, the State Advocate shall represent the Government.
Despite this provision, suing the wrong defendant is still a present issue. In Joseph Difesa et vs L-Awtorità ta’ Malta dwar L-Ambjent u L-Ippjanar et, the plaintiff alleged a breach of his right to property under the Constitution and the Convention after the issuance of a planning permit. The plaintiff sued both the Planning Authority and the State Advocate who immediately stated in his reply that he was not the proper defendant and therefore, should not be involved in the proceedings: ‘mhuwiex il-leġittimu kontradittur f’dawn il-proċeduri għaliex huwa m’għandux il-mansjoni li jirċievi, jipproċessa, u jagħti deċiżjonijiet dwar applikazzjonijiet għall-ħruġ ta’ permessi tal-ippjanar.’
In Strasbourg, in front of the European Court of Human Rights, the process is relatively straightforward. The defendant is always and exclusively the State. Private individuals or legal persons can never be defendants.
The principle of exhausting one’s ordinary remedies is dealt with under Article 35 of the Convention, whereby the ECtHR can only be referred to after all domestic remedies have been exhausted. The importance of this notion is further highlighted under the ‘Rules of the Court’ document issued by the Registry of the Court in Strasbourg, namely Rule Number 47, whereby an individual application must also contain ‘copies of documents and decisions showing that the applicant has complied with the exhaustion of domestic remedies requirement.’
The wording of Article 35 allows a degree of flexibility whereby the ECtHR ‘may only deal’ instead of ‘shall only deal’, proving that the exhaustion rule is one ‘that is golden rather than cast in stone.’ The need to apply this rule with a degree of flexibility has been expressed on various occasions, enunciating that is it unreasonable to apply the ‘exhaustion of other remedies’ rule rigidly.
Examining the local scenario, Article 46 eludes that an application by a person who claims to be a victim of human rights violations must be filed before the Constitutional Court (First Hall of the Civil Court) for redress, which same Court shall have original jurisdiction to hear and determine the case. This is the rule. The proviso provides for an exception to the rule whereby, as a general principle, if ordinary remedies are available, they should be availed of. The Court is awarded double discretion – if, after due examination, it is satisfied that the victim has access to other legal remedies it may decline to exercise its jurisdiction; however, it may still decide to exercise it regardless.
Bonello believes that the Constitutional Court is the Court of ‘first resort’, not of ‘last resort’, and the discretion of the Court is merely an exception to the general rule. He strongly expresses his disappointment with such an interpretation by declaring that ‘[w]hat should have been the ultimate exception has now become the first rule.’
The Court in Attard et vs Policy Manager tal-Malta Shipyards et, sheds light on the Court’s exercise of its double discretion:
Huwa biss meta […] jeżisti rimedju ieħor effettiv lir-rikorrent, li mbagħad din il-[Q]orti tista’ tiddeċiedi li ma teżerċitax is-setgħat tagħha jew le […] anke f’każ li jirriżulta li kien hemm rimedju ieħor, il-Qorti xorta waħda jibqagħlha s-setgħa li tiddeċiedi li ma ċċedix l-eżerċizzju tas-setgħa tagħha.
As is discussed above, the principle of exhaustion cannot be interpreted strictly as that would be detrimental to successful human right violations actions. The procedural pitfall becomes evident when one realises that the pre-requisite of exhausting one’s ordinary remedy is exclusively based on the assumption that there exists an ordinary and effective remedy. This is not always the case. For certain claims, although there may be an ordinary remedy, it may not necessarily be adequate and effective when considering the nature of the action.
A pivotal judgment in this regard is Brincat v Malta. Former Dockyard workers alleged a breach of their right to life after contracting asbestos due to their working conditions. The Constitutional Court denied their claim stating that the plaintiff could have sued for compensation/damages under an ordinary civil remedy before a Civil Court. The issue which arose was that Maltese civil law only allows compensation for real damages and does not envisage compensation for pain and suffering (what are called ‘moral damages’). This is opposite to what is offered under human rights law where, aside from payment of real damages, there is also the additional compensation for pain and suffering. Therefore, the argument presented was that the remedy under Maltese law was not effective and so, the Maltese Courts denied the victims access to human rights protection because they failed to exhaust a remedy which is, by its very nature, ineffective and ‘a remedy which is not effective is not a remedy at all.’ The Court in Strasbourg reiterated that‘compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies […] an ordinary civil claim for damages in tort cannot be a sufficiently certain remedy.’A similar conclusion was reached in Mikalauskas v Malta, whereby the ECtHR awarded the appropriate moral damages but the Maltese Constitutional Court had failed to do so.
To emphasize how Article 46(2) has proven to be an obstacle in human rights procedures, it would be ideal to briefly discuss cases relating to unlawful deprivation of liberty (habeas corpus). Under Maltese law, the ‘remedies’ available take several years to be decided, proving to be complex and lengthy, and therefore, inadequate and ineffective. Bonello quoted the judgment of Abdilla v Malta where it was stated by the ECtHR that persons alleging inhumane prison conditions do not need to exhaust their inefficient ordinary remedy of instituting an action before the Constitutional Court. Similar cases quoted include the Kadem case and the Saliba case whereby the ECtHR noted that the ordinary remedies available were futile.
This hindrance is also evident in property cases. In B. Tagliaferro & Sons Limited and Coleiro Brothers Limited, the owners of expropriated property sought compensation from the Constitutional Court. The Court accepted the State’s obligation to pay but, instead of determining compensation, it directed the parties to the Land Arbitration Board – a Board which has no competence in determining a violation of rights – and awarded the necessary compensation. The parties lodged an application directly to Strasbourg, where they were able to get significant compensation that the Maltese Constitutional Courts had refused to grant them.
A remedy which is often quoted to be adequate and raised as a plea is Article 469A of the COCP, the procedure of judicial review of administrative acts, which gives aggrieved individuals the right to institute actions against a public authority on grounds provided by law. Recent case law, however, has moved in the direction of stating that since the administrative law action of judicial review does not allow the Court to substitute its discretion for that of the public authority, but only declare that the action of such authority is invalid, such remedy is not complete or effective compared with the constitutional remedy.
Human Rights cases under Article 46 of the Constitution and under Chapter 319 of the Laws of Malta are not time-barred – there is no prescription or any period of forfeiture. Article 7 of Chapter 319 may be perceived as a potential obstacle since if the alleged contravention pre-dates the 30th of April, 1987, there shall be no action for redress unless the plaintiff proves to the Court’s satisfaction that the damage relating to the action remained continuous after 1987, for example, in expropriation cases. Therefore, the cutoff date applies to those actions the subject matter of which is an instantaneous act.
The situation is different at Strasbourg level. For an individual application under Article 34 of the ECHR to be upheld, it must be submitted ‘within a period of four months from the date on which the final decision was taken.’
The ECtHR, to reduce its workload and control the influx of applications, must first weed out applications. For this reason, Article 35 of the Convention sets out the admissibility criteria for an individual application to be accepted by the ECtHR.
Besides having to abide by the time limits and satisfy the rule of exhaustion, other requisites must be fulfilled. An application will be declared inadmissible if it is ‘incompatible with the provisions of the Convention or the Protocols’, ‘manifestly ill-founded’, ‘an abuse of the right of individual application’, or if ‘the applicant has not suffered a significant disadvantage’. Also, the ECtHR will not allow repetitive application on matters which have been previously settled by the Courts, especially those relating to the same person, same facts, and same complaints and/or anonymous applications.
An application which is manifestly ill-founded is one which is unmeritorious – when the application is not substantiated and its substance does not disclose any appearance of a violation of a Convention right. Applications must be clear and concise, and cannot create confusion as to what the allegations being brought before the Court are. Applications must be based on real facts and must not mislead the Court since this would impede its proper functioning and prove to be contrary to the right of one’s petition.
The element of juridical interest was initially established by the Court with good intentions. It is, unfortunately, the Maltese Courts’ strict and traditional interpretation which creates a setback. Appropriately, they are gradually warming up to the notion of juridical interest as examined by the Strasbourg Courts. However, this is yet to become a rule rather than an exception. The same can be said about the principle of exhaustion. It must be observed that an effective remedy may not always be available for certain claims and not deviating from such a principle can prove to be a limitation. Other procedural pitfalls are placed as a mechanism to aid in streamlining applications and to ensure that judicial processes are not halted because of an unnecessary influx of applications.
Human rights belong to each and every one of us and violations thereof, whether directly or indirectly, affect all of us – today it is you, tomorrow it might be me. For this reason, it is fundamental that procedures for redress for such breaches are not excessively and unduly interrupted or hindered. It is never within the scope of the Constitution or the Convention to create a burdensome process for the applicant and deter individuals from seeking redress.
The author would like to acknowledge Prof. Tonio Borg’s review of this article.
References:  (Emphasis added).  Constitution of Malta, Article 46(1).  Court Practice and Procedure and Good Order Rules, S.L. 12.09.  Tonio Borg, A Commentary on the Constitution of Malta (KITE Publishing, 2016).  790/2000/1 (FHCC) 30 May 2002.  2760/97 (FHCC) 28 January 2004.  Frances Camilleri-Cassar, ‘Procedural obstacles (A) in a Human Rights action under Article 46 of the Constitution of Malta; (B) in a Judicial Review under Article 469A of the Code of Organisation and Civil Procedure’  Vol. 31 Id-Dritt, 137, 140.  309/2009 (FHCC) 12 December 2013.  (Emphasis added).  App No. 40016/98 (ECtHR, 24 October 2003).  App No. 5029/71 (ECtHR, 6 September 1978).  App No. 7525/76 (ECtHR, 22 October 1981).  App No. 12323/11 (ECtHR, 6 December 2012).  Tonio Borg, ‘Juridical Interest in Constitutional Proceedings’ (Online Law Journal, 17 February 2017) <https://www.ghsl.org/lawjournal/juridical-interest-in-constitutional-proceedings/> accessed 3 May 2023.  234/21 Anna Mallia vs Judicial Appointments Committee et (FHCC) 2 December 2021.  Tonio Borg, ‘Juridical Interest Redefined?’ (Online Law Journal, 12 March 2022) <https://www.ghsl.org/lawjournal/juridical-interest-redefined/> accessed 7 May 2023.  Giovanni Bonnello, ‘Misunderstanding the Constitution – 2: Can Individuals Be Sued for Human Rights Violation?’ Times of Malta (14 January 2018) <https://timesofmalta.com/articles/view/Misunderstanding-theConstitution2Canindividualsbesuedforhuman.667891#:~:text=Tech,Misunderstanding%20the%20Constitution%20%202%3A%20Can%20individuals%20be%20sued%20for%20human,State%20and%20the%20State%20alone.> accessed 15 April 2023.  ibid.  ibid.  Chapter 12 of the Laws of Malta.  Code of Organization and Civil Procedure, Chapter 12 of the Laws of Malta, Article 181B(2).  43/2015/1 (Constitutional Court) 30 June 2021.  ibid.  See Tonio Borg, ‘The Exhaustion Rule, exhausted’ Vol. 31 Id-Dritt, 231.  Rules of Court – Rule 47 (Council of Europe: ECtHR, March 2023), 3.1(h) <https://www.echr.coe.int/documents/d/echr/rule_47_eng> accessed 3 May 2023.  Practical Guide on Admissibility Criteria (Council of Europe: ECtHR, 2014), <https://www.echr.coe.int/documents/admissibility_guide_eng.pdf> accessed 18 April 2023.  Giovanni Bonello, ‘Forget Your Human Rights Unless You Exhaust Other Remedies?’ Times of Malta (21 January 2018) <https://timesofmalta.com/articles/view/Forget-your-human-rights-unless-you-exhaust-other-remedies-Giovanni-Bo.668463> accessed 20 April 2023.  ibid.  26/09 (Constitutional Court) 11 April 2011.  App Nos 60908/11, 62110/11, 62129/11 et al (ECtHR, 24 October 2014).  ibid.  ibid.  App No. 4458/10 (ECtHR, 23 July 2013).  Giovanni Bonello, ‘When Maltese Justice Fails, Go Directly to the Strasbourg Court?’ Times of Malta (7 October 2018) <https://timesofmalta.com/articles/view/when-maltese-justice-fails-go-directly-to-the-strasbourg-Court.690936> accessed 20 April 2023.  App Nos. 75225/13 and 77311/13 (ECtHR, 11 September 2018).  See 39/04 Ivan Vella vs Attorney General (FHCC) 23 June 2005 (Mr Justice JR Micallef); 27/08 Laura Peregin vs Prime Minister (FH) 27 February 2009 (Mr Justice G. Valenzia); and 83/15 Glen James Scott vs Prime Minister et (CC) 26 January 2022.  26/2013 Dr L. Gonzi noe vs Electoral Commission (FHCC) 5 February 2015.  European Convention of Human Rights, Article 35(1).  ibid 35(3)(a)-(b).  ibid 35(2).