Judicial remedies for human rights abuses

Abstract

Ubi jus, ibi rededim: where there is a right protected by law, there is a remedy at law whenever that right is infringed. The State is the guarantor of fundamental rights and freedoms and is to make good for those rights whenever they are infringed. This entails the right to redress to the domestic courts of that particular State. Within the Maltese context, Article 46 of the Constitution and Article 4 of Chapter 319 allow any person who has suffered, is suffering or is likely to suffer a violation of his fundamental rights to apply for redress. Once the domestic remedies have been exhausted, every person in Malta may apply to the European Court of Human Rights to have his case decided by that same Court. Whenever the right to redress is afforded, and a violation of human rights has been proved, the Courts are bound to award the victim of the violation a remedy. Remedies may be broadly classified into awards of compensation, non-monetary remedies and provisional orders. The Maltese Courts are empowered to award remedies by virtue of Article 46(2) of the Constitution and its mirror Article 4(2) of Chapter 319 which provide that a Court may "make such orders, issue such writs and give such directions as it may consider appropriate" in the given circumstances. This wide power has been used by the Courts satisfactorily. The European Court of Human Rights, by virtue of Article 41 of the European Convention on Human Rights, may afford the victim 'just satisfaction' when a violation has occurred and the domestic remedies have only afforded partial reparation. Moreover, it will award a remedy if it considers it necessary and appropriate to do so. The Court is not in any way limited as to the kinds of remedies it may award. However, it has interpreted Article 41 narrowly and has held that it will only afford declaratory judgments or awards of compensation.