Right to an effective national remedy

Now that we have considered the substantive rights under the European Con-vention on Human Rights (ECHR), another few general legal provision of the will be analysed, after which we will be scrutinising the rights emerging from the protocols of the ECHR, rights which are assuming further relevance and importance in contemporary democracies.

The right to an effective national remedy is provided for by Article 13 of the ECHR which states: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

This is reflected, though indirectly, in our Constitution, which also requires, though this is not expressly stipulated, that on the finding of a violation of any of the human rights enshrined within Chapter IV of our Constitution, a remedy must be granted to the victim of the human rights violation. Article 32, for example states:

"...the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by an individual does not prejudice the rights and freedoms of others or the public interest".

Arguably, the concept of protection here includes the requirement to grant an effective remedy. Additionally, Article 46 (2) of our Constitution states:

"The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1) of this section, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said sections 33 to 45 (inclusive) to the protection of which the person concerned is entitled."

However, its proviso, counterpart to former Article 26 ECHR, stipulates that:

"Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this subsection in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law."

It is thus apparent that Article 13 of the ECHR is central to the co-operative relationship between the ECHR itself and national legal systems, and that it is of autonomous and subsidiary character.

Considered in conjunction with the other provisions of the ECHR, it may be concluded that there exists an obligation to provide an effective remedy within the national legal order. This is primarily because Article 1 requires contracting states to secure the rights in Articles 2 to 12 to everyone within their jurisdiction, and also since the ECHR enforcement mechanisms are subsidiary to national protection.

Nevertheless, there is a certain anomaly in the right to a remedy itself being classed among the rights guaranteed, and this has led to difficulties in deciding when the right arises.

In Klass vs. Germany 1978 the European Court of Human Rights (ECtHR) indicated that the requirement of effectiveness had to be read in the context of the complaint, while in the Silver vs. UK 1983 case, the ECtHR held that the remedy before the national authority should concern both the determination of the claim and any redress.

Moreover, it appears from jurisprudence that the requirements made of the national system are at a low level. It can almost be reduced to the question of whether there is some mechanism, or mechanisms taken together, which might lead to a remedy for the complaint.

Many human rights experts and jurists opine that Ombudsman procedures and other non-judicial procedures will be included. Naturally, however, our Ombudsman is restricted by the fact that he may make recommendations which he subsequently reports to our House of Representatives in accordance with the Ombudsman Act of 1995.

To this extent, he is not vested with the powers to grant or ensure an effective remedy. The recent ongoing controversy is a demonstration of this. It must also be pointed out that, once a remedy is identified, it is not necessary to show the certainty of a favourable outcome.

Despite its importance, the language and objective of Article 13 are far from clear. In fact, two judges of the ECtHR have called it the "most obscure provisions of the ECHR, namely Judges Matscher and Farinha in their partially dissenting opinion in the Malone vs. UK case of 1984.

In Soering vs. UK 1989 the ECtHR held that: "Article 13 guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order."

The effectiveness of the remedy required may be conditioned by the character of the ECHR right to which it is sought to attach it, the suggestion being that more important rights require more stringent remedies. The effectiveness of any remedy that Article 13 requires may be limited by virtue of the nature of the state power the exercise of which is being questioned. The ECtHR requires the applicant to show only an arguable case to be able to complain of a violation of Article 13.

The test of having an arguable case was explicitly affirmed in the Silver case, where the ECtHR held that:

"Where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress."

Effectiveness contains and demands four principal elements, though each may impact on the others - institutional effectiveness, substantial effectiveness, remedial effectiveness and material effectiveness. The former requires that the decision-maker be sufficiently independent of the authority alleged to be responsible for the violation of the ECHR.

Substantive effectiveness necessitates that the applicant of any claim is given the opportunity to forward it and to make a specific, identifiable argument within the particular domestic jurisdiction just as he is given before the Strasbourg authorities. Remedial effectiveness requires that if the applicant's substantive arguments are accepted by the national authority, it will be in a position to grant him a remedy.

The latter form of effectiveness implies that the rights in the ECHR must be effective and not merely theoretical, or rather the applicant must be able to take advantage of the right to individual petition and the right to have his constitutionally safeguarded rights protected and redressed.

All this shows the intricate link between the right to an effective remedy and the duty to exhaust all ordinary and domestic remedies available at law before claiming a human rights violation. Arguably, this nexus, or rather the use, or possibly misuse, of this link has given a margin of substantial discretion and leeway to domestic courts which can rely on such rule to the detriment of hindering and/or eliminating the right to an effective remedy.

This has occurred in Malta where our Constitutional Court deemed it appropriate to take such a course of action, which arguably undermines the supremacy of our Chapter IV of the Constitution emerging from Article 6 of the same High Law of the Land (the Constitution of Malta itself).

For example, in the Constitutional Court's (CC) judgment of August 12, 1998, in the case Dr Lawrence Pullicino vs. the Prime Minister and the Attorney-General, our CC examined, in an 80-page decision, Dr Pullicino's claim of political discrimination and breach of fair trial, partly caused, according to Dr Pullicino, by pre-trial publicity suggesting his guilt, and a virulent and hostile press campaign in his regard and to his detriment.

The CC noted that the Court of Criminal Appeal (COCA) found some irregularities in the trial by jury and confirmed their existence in its judgment, though it added that "in addition to demonstrating a material irregularity in the cause of the trial, before relief is granted, it has to be shown that the irregularity actually caused specific harm to the aggrieved party, which would have been avoided had the impugned events not occurred".

The CC noted that two local newspapers were condemned for contempt of court. The Malta Independent, for example, was condemned for an article published in November 1992 in which it was erroneously stated that Dr Pullicino was found guilty by the CC for violating fundamental human rights.

The CC also noted that during the trial by jury, precisely as soon as Dr Pullicino was about to start giving evidence, all his personal notes of all the evidence brought forward by the prosecution, both handwritten and printed, including all his law books, were removed from his cell against his will.

The CC held that "dan affettwa serjament id-difiza tieghu" (this seriously jeopardised his defence), and added that "anke persuna tant ovvjament hatja ta' reat ghandha wkoll ikollha l-possibilità li tigi mghejjuna fid-difiza taghha bl-aktar mod ampju" (even a person so obviously guilty of an offence should also have the possible of being assisted in his defence in the widest way possible), and that "anke l-aktar kriminal atroci ghandu jinghata l-facilitajiet kollha biex jikkonduci d-difiza tieghu" (even the worst criminal should be given all the facilities to conduct his defence).

In his evidence of January 19, 1995, Dr Pullicino's lawyer (today Mr Justice Joseph Galea Debono), testified that the removal of his client's notes seriously prejudiced his task as a defence lawyer. The CC also noted that, after all, Dr Pullicino, a lawyer himself, could assist his own defence lawyer in the performance of his functions.

The CC stated that "l-iskop ta' l-Artikolu 583 huwa li x-xhieda ta' persuna, parti jew le f'kawza, tkun genwina u mhux kontaminata, u biex minn din ix-xhieda tohrog il-verità tal-fatti. Huwa zgur illi l-kotba tal-ligi ma setghux jassistu lill-imputat biex dan l-iskop jigi stralcjat. Din il-Qorti jidhrilha li l-akkuzat, avukat hu nnifsu, ma kellux jigi impedut milli jaghmel referenza ghal dawk il-kotba biex ikun jista' jghin fid-difiza tieghu innifsu. Ix-xhieda tieghu kienet wahda mill-armi f'din id-difiza u ghalhekk kellha tkun bl-aktar mod iffacilitata u mhux imfixxkla."

(The purpose of Article 538 is that the evidence of a person, whether or not a party to a case, is genuine and not tainted, and for the factual truth to emerge from such evidence. It is certain that the law books could not have helped the accused to reach this objective. This Court feels that the accused, who is himself a lawyer, should not have been prevented from making reference to those books to help him in his own defence. His evidence was one of the weapons in this defence and therefore should have been facilitated by every means and not obstructed.)

The CC concluded: "li l-perkwi-zizzjoni tan-notamenti u kotba ohra ta' l-appellant minghajr pre-avviz zgur li fixklet ix-xhieda moghtija minnu in difiza, sew mil-lat fattwali, sew minn dak psikologiku, u dana partikolarment ghax dak in-notamenti li gew ippreparati minnu biex jaghmel l-istess difiza ma kinux necessarjament jirreferu ghal xhieda precedentement moghtija" (the perquisition of the appellant's notes and other books without prior notice certainly hampered the evidence he gave in his defence, both from the factual aspect and from the psychological one, and this particularly because those notes which he had prepared for his own defence did not necessarily refer to the evidence given previously).

It also noted that Dr Pullicino "did not seem to have been treated in the same way as the witnesses for the prosecution", and finally held that "the appellant's right to a fair trial before the first Court was violated".

However, the CC availed itself of the proviso to Article 46 (2) quoted earlier and failed to grant a remedy since it contended that when Dr Pullicino appealed before the COCA he never requested to give evidence with the use of his personal notes.

What is the function of the CC, if not to afford a remedy where individual rights have been violated, particularly where a previous court had ommitted to grant such remedy on appeal? Did the CC consider the fact that such a technicality as brought forward by the COCA itself was unprecedented? Is it not the CC's function to re-examine the COCA's arguments in the light of constitutional principles?

The CC noted that the COCA found no miscarriage of justice notwithstanding the existence of certain irregularities. Could the COCA arrive at such conclusion? Was it not asked to grant a remedy to the appellant regarding this specific point? Could it not have ordered the production of the documents or otherwise afforded the appellant the chance to clarify matters with the benefit of his notes? Why didn't the COCA exercise its wide powers granted by Sections 506-508 of the Criminal Code in this case?

It is clear that the CC felt that "it was desirable that" it does not grant a remedy in this case, despite the gravity, the seriousness and the clarity of such a violation of human rights. The legal maxim ubi ius ibi remedium (where law prevails there is a remedy) is a necessary element of the rule of law, and its importance is further augmented when the case being considered is one alleging a violation of such rights.