Human rights are nowadays taken for granted, which is not to say they are always upheld, but it has not always been the case, even in Malta. As Malta marks the 50th anniversary of its accession to the Council of Europe and on the eve of European Civil Justice Day, Ray Bugeja met Chief Justice Emeritus Vincent De Gaetano, who sits on the European Court of Human Rights, to discuss some issues.

Malta joined the Council of Europe in 1965 and acceded to the European Court of Human Rights in 1966-67. What did that mean in Malta’s judicial history? More importantly, how did citizens benefit?

Signing up to the statute of the Council of Europe and to the European Convention for the Protection of Human Rights on the heels of independence was a significantly-provident political decision. It showed Malta’s commitment to becoming, or becoming again, an integral part of Europe, a position which may have been slightly obfuscated after almost 164 years as a British possession. Joining the Council of Europe and signing the Convention were part of a process culminating in Malta’s accession to the European Union in 2004.

For the ordinary citizen, accession to the Council of Europe and the Convention in the late 1960s did not mean much. I would say it was only in the late 1970s or early 1980s, because of the political situation then obtaining in Malta, that the legal profession first and then citizens generally became sensitive to the idea of fundamental human rights and alert to both direct and indirect violations of those rights.

It was only in May 1987 that Malta accepted the right of individual petition and the compulsory jurisdiction of the European Court of Human Rights. Are we not celebrating the 50th anniversary 20 years too early?

It is not quite as simple as that.

The right of individual petition is one of the essential features of the system as we know it today, but this was not always so. Until Protocol 11 to the Convention came into force in 1998, both the compulsory jurisdiction of the Court – which originally had what I would describe as an “intermediate” role between the Commission on the one hand and the Committee of Ministers of the Council of Europe on the other – and the right of individual petition were optional system features.

When the Convention came into force in 1953, only three of the original contracting states had accepted this right. By 1990, all the state parties to the Convention (then 22) had accepted this right.

Admittedly, the decade and more before 1987 was not exactly a florid period for human rights in Malta. That said, however, one must not forget that it was the step taken in 1966/67 which allows the Court to this very day to enquire into alleged violations of the Convention that can go as far back as January 1967.

What, in your opinion, have been the more important decisions made by the European Court vis-à-vis Malta, and how have these affected life in these islands, in whatever sphere?

Broadly speaking I would say there are two clusters of cases which have had a considerable impact on Maltese law, in the sense that either the law had to be changed or the Maltese courts had to reassess their position.

One cluster deals with the right to liberty and security of the person – article 5 of the Convention. The other deals with the right to the peaceful enjoyment of one’s property – article 1 of Protocol 1. As to the first, a number of judgments delivered against Malta found that the law relating to the procedure upon arraignment under arrest and for the granting or otherwise of bail did not meet the standards of the Convention. These judgments focused on the requirement that a person deprived of liberty must have an automatic and speedy determination of the reasons justifying the detention, that relevant and sufficient reasons must be given when bail is denied and that, in any case, the length of pre-trial detention must be reasonable.

Signing up to the statute of the Council of Europe and to the European Convention for the Protection of Human Rights was a significantly-provident political decision

As to the property cases, these have focused mainly on whether or not the required fair balance between the interests of property owners and those of the community had been struck in cases of expropriation, requisition and restrictions on rent or ground rent. In a number of these cases, the Court found that the owners of property had to bear a “disproportionate burden” in the context of the provision of social housing.

Other interesting cases against Malta which come to mind are Mizzi v. Malta, which dealt with the presumption of the husband’s paternity of the child, and Zarb Adami v. Malta, on discrimination between the sexes in the context of jury service.

More recently, the Court, in Camilleri v. Malta, found that the Attorney General’s unfettered discretion as to whether a person charged with a drugs offence was to be tried by the Criminal Court or by the Magistrates’ Court was in violation of article 7 of the Convention.

Rather than assiduously working to uphold human rights, do you fear that, at times, human rights can work more in favour of lawbreakers/criminals than serve and protect society and the human dignity of each one of us? Something that comes to mind immediately as a layman is granting bail to serial killers, convicted human smugglers and well-known drug traffickers.

I think there is a fundamental misconception on the role of the Convention and of the Court, a misconception often fuelled by poor, incomplete or selective reporting of its judgments.

The Convention is not in conflict with the protection of the public, nor does it or the Court undermine the proper administration of justice, including the punishment of offenders. The thousands of cases in which the Court has found there was no violation of articles 5 and 6 are a testament to that. But the moment one mentions prisoners or persons charged with serious offences there is like a public ‘knee-jerk’ reaction: lock them up in perpetuity even before the case is heard!

The Convention and the Court’s case law do not require the granting of bail in every case. If there are relevant and sufficient reasons for pre-trial detention – and previous serial behaviour with the consequent danger to the public is a relevant consideration – then bail can be denied. But in doing so a court must give reasons in the decree denying bail. And once bail has been denied, there is a special duty of diligence upon the authorities to conclude the investigation and the trial within a reasonable time.

For instance, committal proceedings cannot go on for months, if not years, while the accused is in pre-trial detention. In a sense, magistrates in Malta are sometimes ‘forced’ to grant bail because they know the system will not, in most cases, provide for trial within a reasonable time.

An essential role of the European Court is to ensure member states practise what they preach in terms of their commitments within the framework of the Convention. But how can that happen in practice if the Court is not empowered to overrule national decisions or annul national laws even if its judgments are binding? The Court speaks of the concept of positive obligations, but do not these depend on a member state itself? If a state does not bother what can the Court do?

The question raises a number of issues, some of which are interrelated.

Article 1 of the Convention requires that every state party to it is to secure to everyone within its territory or under its control – and therefore not only to the citizens of that state – the enjoyment of all the rights and freedoms listed in the Convention. When the Court finds a violation, it will – save in some exceptional circumstances – afford ‘just satisfaction’ by ordering the respondent state to pay to the applicant non-pecuniary (moral) damages or pecuniary (material damages) or both, as well as to pay costs and expenses.

But the state’s obligation does not end there: every finding of a breach of the Convention or its protocols imposes on the respondent state a legal obligation to take the general and/or individual measures in the domestic legal order to put an end to the violation found by the Court and to prevent similar future violations. Sometimes the Court even goes out of its way to indicate what these individual or general measures could or should be.

Unlike most Constitutional Courts, however, the Court cannot ‘annul’ domestic laws. The execution of all this – payment of damages, of costs and expenses and the taking of general or individual measures – is supervised by the Committee of Ministers of the Council of Europe.

The Committee of Ministers is, of course, a political organ and works through peer pressure, but in the context of the execution of the Court’s judgments it has proved to be one of the major successes of the Council of Europe. Most states comply immediately with the Court’s judgments, particularly as to the payment of damages and costs; a few others do so after the necessary pressure is brought to bear.

A couple of countries have a poor record of compliance when it comes to the measures to be taken at domestic level to remedy for structural or systemic problems.

Malta has a fairly good record of compliance. According to statistics, the Committee of Ministers closed its supervision of the implementation of 12 judgments against Malta in 2013-2014, compared with only nine judgments from 2000-2013. This is a positive trend and indicates an increase in the number of judgments against Malta which have been fully complied with by the Maltese authorities, with a corresponding decrease in the number of such judgments pending before the Committee of Ministers.

‘Positive obligations’ is a slightly different issue. It is true that the notion stems from a combination of article 1 of the Convention and the supervisory jurisdiction of the Court in article 19, but it is more of a constructive reading of a duty upon states which the Court has made in respect of several articles.

While a negative obligation implies a duty on the state and its agents not to breach human rights, a positive obligation denotes the state’s duty to take positive action and measures to secure the effect-ive enjoyment of a fundamental right, for example when the violation is at the hands not of the state or its agents but of private individuals.

As regards the concept of positive obligations, lawyers and judges in Malta are not yet finely attuned.

In a number of judgments against Malta, the European Court had words of criticism in respect of the narrow approach to fundamental human rights taken by the local courts, and in one of them also spoke of the courts overstepping their margin of appreciation. Also, two years ago, a former Maltese ambassador to the Council of Europe accused the Court of being “manipulated by a court insider and Maltese NGOs” when it issued a Rule 39 injunction against Malta to prevent a pushback of migrants. Do you not fear such statements risk eroding public confidence in the domestic courts and, in the latter case, in the European Court itself?

As to what the former ambassador said, the Convention guarantees only freedom of expression but it does not guarantee either the necessary wisdom in the articulation of that freedom or the veracity of what is expressed. Suffice it to say that, before the Committee of Ministers, both the current ambassador and the current Minister of Foreign Affairs distanced themselves completely from what the former ambassador had said.

Now that the case is completely over, I would hazard an ‘intelligent’ guess that, had the injunction not been issued, Malta would have been faced with a finding of a violation as had been found against Italy.

As to the first question, the answer is in the negative.

The very nature of the supervisory role of the Court requires that, in some cases, it will overturn a decision taken by successive domestic courts, that is to say at first instance, appeal, cassation and, possibly, Constitutional Court as well. In this context, it is always good to remember that there are thousands of cases where the Court has found no violation, but these never make the headlines.

In a Maltese context, the fact that a case may have gone through various appellate courts, like the Court of Criminal Appeal, the Court of Appeal and the Constitutional Court, does not mean that all the judges were in full agreement with a particular outcome since no separate opinions are allowed in our collegial courts.

In being a ‘standard setter’ and at the same time ensure signatories continue to observe their commitments to the Convention, the European Court must strike a delicate balance between being proact-ive and not undermining the democratic process. Does the European Court risk becoming larger than the governments that conceived it and gave it life?

I will answer by putting another question: how can the ‘democratic process’ be undermined just because a court can strike down a law as unconstitutional or declare a law to be in breach of a fundamental human right? In many jurisdictions on the continent (as also in Malta) this can be done, usually by the constitutional courts.

I see this process as an indicator of democracy which, in its modern concept, is inseparable from the rule of law. It means that even parliaments are subject to a higher law and do not have unfettered discretion, no matter the majority that the ruling party enjoys in the House.

Most judges I know do not harbour the illusion that their legal and judicial systems are perfect or that their supreme court is infallible. Neither is the Convention system infallible, but the states parties to the Convention have entrusted the Strasbourg Court with the ultimate task of ensuring observ-ance of the Convention.

On the home front, are you satisfied that all is well with the upholding of human rights in both word and spirit?

One must always be vigilant.

By definition, the principal human rights viol-ators are states. Not surprisingly, human rights lawyers and activists are targeted, harassed and imprisoned, even, regrettably, in some European states.

What I find lacking in Malta is a general public awareness of what fundamental human rights really entail in practice. There is a lack of serious discussion at various levels of society. One comes across an almost flippant attitude in discussions on such issues as immigration or refugees, or the way appointments are made to government boards, or the length of judicial proceedings, or the way criminal investigations are carried out.

Then there is the other extreme: when one sees everything as being a fundamental human right, which reminds me of an incident many years back when my wife’s cousin, who was a parish priest in Sliema, refused, according to Church law, to baptise a child. He was accused in the press of breaching the human rights of that child!

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