The protection of human rights under the Maltese Constitution and the European Convention : a procedural analysis

Abstract

One of the most fundamental aspects of human rights protection is undoubtedly the procedural machinery through which victims of any violated freedom may seek adequate redress. The effective protection of human rights in any jurisdictional system will largely depend on the type of enforcement procedure available to the individual within such system. In Malta this procedure is set up by the 1964 Independence Constitution, whereby cases of alleged violations of the Fundamental Human Rights contained in the Constitution are to be heard by the First Hall of the Civil Court in its constitutional jurisdiction, and by the Constitutional Court of Malta. In 1987, the Maltese Government finally extended the human rights enforcement procedure to the international level, when it made declarations under Articles 25 and 46 of the European Convention of Human Rights, recognising the right of individual petition and the compulsory jurisdiction of tt1e European Court of Human Rights. Subsequent to such declarations the Maltese Parliament enacted the European Convention Act of 1987, which incorporated the European Convention's substantive provisions into our domestic law, and provided for the procedure through which alleged victims of a violation of the Convention rights may seek redress before the local courts. Thus, today Maltese citizens are guaranteed a dual protection of human rights before local courts, and if domestic remedies prove to be ineffective, they may seek redress through the political and juridical procedures of the European Convention. The procedures established by Maltese Law and by the European Convention Law for the enforcement of human rights have in many instances raised various juridical problems and queries. Both the Maltese Courts and the European Convention's organs have developed their respective jurisprudence in respect to the definition and interpretation of the procedure provided by the law. It is through an examination of this jurisprudence that I intend to analise the procedural aspect of human rights protection. With regards to the domestic procedure I will examine certain problems which have faced the First Hall, Civil Court and the Constitutional Court, and illustrate the working of this procedure in view of their case-law. Under the European Convention, the most important supervisory organ and the one which hears most applications is certainly the Commission. Thus, with regards to the Convention's procedure, the discussion will largely centre on the main procedural functions of the Commission, in view of its vast jurisprudence.