Malta and the European Court of Human Rights

A somewhat disturbing statement was made by a Justice Ministry spokesman in his reaction to two decisions by the European Court of Human Rights finding Malta in breach of the right to freedom of expression.

There have been only three cases of such violation since 1965 but the last two took place within the short span of six months. Three are not too many but the issues involved in both may raise doubt as to whether the judiciary, or, at least, some members of it, are today sufficiently au courant with the European judicial trends insofar as freedom of expression is concerned.

This point assumes significance in view of the growing feeling that some members of the judiciary may not be well qualified for the job and that greater care ought therefore to be made in the appointment of magistrates and judges.

Reacting, when asked by this newspaper, to the cases of violations of freedom of expression decided upon by the European Court, the Justice Ministry spokesman said that Malta did not have a grave problem with freedom of expression. He was quoted saying that this is “not perceived as being representative of a serious problem”.

This is all very true. There is hardly any need to bring back the past to highlight how bad the situation had become at certain periods in the island’s contemporary history. Strickland House is well in a position to testify to this as it was the victim of the worst threat to freedom of expression when political arsonists attacked the building and set it on fire in full view of the police.

So when the Justice Ministry spokesman said that “Malta has no cases of journalists being sent to jail or any cases showing a grave problem with freedom of expression”, the statement, though correct, would need to be qualified. God forbid the situation worsens so much that the courts would have to regularly jail journalists over freedom of expression abuses.

Malta is not an errant state in freedom of expression, though it is certainly not out of place to remark, in a very negative sense, on the extent of certain laxity being allowed today in freedom of expression in newspaper websites. Going to extremes and throwing ethical standards and prudence to the wind are ruining what could otherwise be, if used responsibly, a most healthy democratic platform for discussion.

On the other hand, the courts would have to come to terms with the greater degree of tolerance allowed in freedom of speech as it is now being established in the caselaw of the European Court of Human Rights.

The Justice Ministry spokesman remarked that “the three cases in question were ones where the Maltese court applied a rather traditional and strict interpretation of the laws on defamation without allowing enough tolerance, in the opinion of the ECHR, to possibly inexact statements by journalists”. This is a very well crafted reaction that, in part, backs this newspaper’s argument over the degree of tolerance made earlier.

As to whether the statements made by the journalists were inexact or not, the European Court dealt with the issue fairly and found in favour of the applicants. In both cases, the European Court also found that the Maltese courts failed to take certain very important factors into consideration.

The very significant points made by the European Court ought to be well digested by members of the judiciary deciding freedom of expression cases.