Editorial [Mediterranean Human Rights Review : vol. 1]

Abstract

For a long time there was a tendency within Maltese legal circles to regard the ratification by Malta of the European Convention of Human Rights, subsequently followed up by the granting of access to the Strasbourg Court to ordinary individuals in Malta, as representing the ultimate panacea for human rights protection. It was thought that human rights had been placed on extremely solid foundations, given the comprehensive coverage afforded by the Convention, particularly when read together with the Maltese Constitution and also when keeping in mind the eagle eyed scrutiny with which cases of potential human rights breaches would be scrutinised by a range of legal professionals with a view to opening and winning a case in Strasbourg. In human rights, as in other fields of law, time does not stand still. The conference, the proceedings of which constitute the bulk of this first issue of the Mediterranean Human Rights Review, was based upon the insight that reliance upon supra-national protective systems is not per se sufficient to ensure an adequate and comprehensive protection of Human Rights. This is particularly the case in Malta, where a dualist understanding of the impact of International treaties upon domestic legislation, coupled with a Mixed legal system which combines linguistic/legal hybridity, an eclectic understanding of the sources of law and a rather compartmentalised understanding of the relationship between different legal sectors tends to complicate the process of accessing a human rights remedy. The complication can be readily understood if one keeps in mind that as a rule access to the (exceptional) human rights remedy – which in turn is understood mainly through a Common law lens given the British colonial origins of Maltese Public law- is only granted internally once proof is brought that no ordinary Private law remedy (under a Civil Code based on the Code Napoleon system) was available to the victim. When one throws into the mix the rule by which the Strasbourg Court proceeds, that it will not grant access to the Court if it is shown that an effective remedy exists under the domestic law of the State in question, it becomes evident that it remains important to examine the institutional structures which exist at sub-National and National levels and which aim to protect Human Rights within the Nation-State system itself. [excerpt from the Editorial]