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Documenting human rights cases

Mark Sammut, Patrick Cuignet, David Borg; Malta at the European Court of Human Rights. Ius melitae. 2012, 384 pp.

Malta at the European Court of Human Rights could not have come at a more apt time, having as its central theme the documentation of all the cases decided by the European Court of Human Rights of Strasbourg (ECHR) originating from Malta.

Yet, in truth, there exists greater depth to the book. It contains myriad information on the European Convention on Humans Rights and the manner in which convention has developed over the decades as the human rights fulcrum for the entire European continent.

The authors also highlight that fundamental development in Maltese human rights law represented by the European Convention Act (Act XIV of 1987), which incorporated the provisions of the European Convention protections into Maltese domestic law. The enactment has had, and continues to have, far-reaching effects. It allows any individual from Malta to seek human rights redress before the Maltese constitutional courts first – and should no remedy be granted, to finally resort to the ECHR.

The authors then give readers a vintage treat by including a chapter authored by none other than the person who created the European Convention Act, Giovanni Bonello.

Dr Bonello subsequently went on to deservedly occupy the post of judge on the ECHR itself, earning himself and Malta distinction for the immense knowledge he garnered over a professional life dedicated to the protection of human rights both in Malta and abroad, over the span of at least 40 years.

The delights for the human rights enthusiast, student and even for the ordinary person, who after all is at the topic’s very centre, include a very thought-provoking article by the publication’s editor and co-author Mark Sammut, who focuses on whether the cause of fundamental human rights of the person has become today’s “secular religion”.

However, before embarking further on the compendium of information contained in this publication, it needs to be stressed that the struggle for the respect of a person’s basic dignity is always a frontier that needs to be won every single day of the year.

Governments often resort to draconian measures whenever faced with overwhelming challenges to their national security, or even when introducing reforms considered in the national interest. This is so, even if backed by majorities in their respective national parliament. The interests of the community become of greater significance than the basic dignity of the person; it is then that even well-meaning, democratic governments lose sight of the true meaning of what human rights protections are all about.

A publication such as the one under review plays a major role in reminding all political forces, whether in government or in opposition, that no crisis or reform is so important as to forget the fundamental idea that all people share in equal measure the nature of a human being.

It needs to be stressed that the struggle for the respect of a person’s basic dignity is always a frontier that needs be won every single day of the year

Dr Sammut certainly cannot be described as faint-hearted; among many other human rights issues, he tackles that of mass migration head on. He quotes Agamben:

“…the League of nations, and, later, the United Nations confronted by the problem of refugees and the protection of fundamental human rights… a mass phenomenon, both these organisations and individual states prove themselves despite their solemn invocations of the sacred and inalienable rights of man, absolutely incapable of resolving the problem and even of confronting adequately.”

One wonders, on hearing of the absolutely unacceptable and horrendous deaths of emigrants escaping torture, inhuman incarceration and war, whether the EU is to be added to that list of international organisations.

By way of conclusion, the book has an erudite contribution by Kevin Aquilina, who reviews Malta’s track record before the ECHR. He soberly demonstrates that: “Out of 47 cases where Malta was the respondent state decided by the European Court of Human Rights, the European Court concluded that there existed a violation of the European Convention in 41 cases. Therefore, in only six cases did the European Court hold that there was no violation of the European Convention and found in favour of Malta.”

The authors deliver what they promise. Each Maltese-flavoured ECHR case is dutifully recorded, summarised through the careful segregation of facts from the relevant law and, as if all this were not enough, human rights lawyer Therese Cachia Commodini highlights the general principles in terms of each respective article of the Convention that underlies each judgment.

The ambitious pursuit by the co-authors to be as comprehensive as humanly possible may invite that, in any welcome sequel to this, they dedicate greater attention to the presentation and organisation of the indices and cross-references which bless this book, but which sometimes tax the researcher.

In a year which has already seen major legal publications, such as those by David Attard on the Maltese legal system, Ray Mangion on the rulings of the Speaker and Simone Borg on environmental law, just to name three, this book serves as further evidence of a renaissance in Maltese legal publishing under way.

One sincerely hopes this will not be shortlived.

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