Maltese courts are yet to embrace the concept of “positive obligation”, which denotes the State’s duty to secure enjoyment of fundamental rights rather than abstain from any action that might violate them, according to former human rights judge Giovanni Bonello.

Conceived in a landmark judgment by the European Court of Human Rights (ECHR) in the late 1970s, the most prominent application of positive obligations arises from Article 8 of the European Convention on Human Rights, which deals with respect for private and family life.

Over the past decade, the most notable cases abroad in which this concept played a major part were in the right of transsexuals to decide if they wanted sex reassignment surgery.

Dr Bonello was yesterday addressing members of the judiciary and legal profession during a seminar organised by the Malta Law Academy focusing on positive obligation.

His presentation dealt with the application of this concept both in ECHR cases involving Maltese parties and within the local judicial system.

“I stand to be corrected but to date the concept of positive obligations has never been applied by the Maltese courts,” he said, although a number of those present were heard expressing their disagreement with him.

Dr Bonello said the future lay in greater recognition of positive obligations.

He highlighted an ECHR judgment handed down last July in which the Maltese government was ordered to pay €226,000 in compensation to 19 dockyard workers poisoned by asbestos.

The decision was based on the positive obligation of the State to legislate on asbestos and workers, to take practical measures to safeguard them from any harmful effects and to tell them of the hazards involved, Dr Bonello said.

To date, the concept of positive obligations has not been applied

The debate was chaired by ECHR Judge Vince De Gaetano, who remarked that one possible reason for the lack of application of this concept in Malta was that the court’s decision tended to reflect the manner in which the case was presented by the lawyers.

This view was partly shared by Chief Justice Silvio Camilleri, who said that positive obligations were being given some weight by the courts.

He argued that even though there was no explicit reference in the interpretation and application of provisions, the concept was not being overlooked.