What are the implications of the European Court of Human Rights case law on abortion legislation in Malta?

Abstract

Malta boasts an outstanding development of human rights protection afforded to its citizens and has generally adhered to the standards and principles set out by its main human rights instruments; the Constitution and the ECHR. But what about its long-standing prohibition of abortion in all cases? Abortion cases in Malta are scarce and have never touched upon any possible human rights violations, having been approached solely from a criminal perspective in line with the Criminal Code. The same cannot be said for the ECtHR, which in its interpretation of the ECHR, has assessed and ruled upon violations of human rights in abortion cases. In consideration of the Convention being part of Maltese law and Malta being bound by judgments to which it is party as enshrined in the European Convention Act, it is indisputable that the Convention and its interpretation as pronounced by the Court are crucial. This extends to abortion and to judgments of the Court against other member states which could put significant pressure on Malta, the Maltese Courts and its application of abortion law. What has been the ECtHR’s approach to date? Is Malta’s position in breach of human rights as pronounced in the Court’s judgments? Could Malta find itself having to reassess its abortion regime as a result of such judgments? These questions lead to the determination of the possible implications of the ECtHR case law on Maltese abortion legislation. An assessment of the Maltese abortion scenario against a thorough analysis of the principles set out in the ECtHR has shown, that owing to the doctrine of the margin of appreciation, abortion legislation has been ruled as a prerogative of the State. However, in consideration of the influence of the ECtHR’s judgments and the growing consensus in favour of legalisation of abortion, the possible reassessment of Maltese abortion law is not wholly ruled out.