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Misunderstanding the Constitution – 2: Can individuals be sued for human rights violation? - Giovanni Bonello

The Office of the Prime Minister in Valletta: “The State is the guardian and guarantor of your human rights. Human rights are a matter between you and the State.” Photo: theendup/Shutterstock.com

The Office of the Prime Minister in Valletta: “The State is the guardian and guarantor of your human rights. Human rights are a matter between you and the State.” Photo: theendup/Shutterstock.com

No one has so far managed to convince the Maltese courts that only the State can be sued for breaches of human rights. Not an individual, not a private company or association – the State and the State alone. Malta is the only country in democratic Europe that has misunderstood the very basic concept of human rights so thoroughly that it is perfectly acceptable to go to the constitutional courts to sue a football club for forced labour or the grocer for inhuman and degrading treatment.

Roughly, human rights are those very basic rights every human being is born with, and without which a person would not rank as a human being. They’re yours merely by virtue of being born. Examples are the right to life, freedom from slavery, right to private property, to a family life, to freedoms of conscience, association, religion and expression, right to privacy and freedom from discrimination, etc.

These are not rights conferred by a benevo­lent sovereign or Parliament, like ordinary rights. These are rights every person is born with. The State does not bestow them on you, the State cannot deprive you of them. The State is the guardian and guarantor of your human rights. Human rights are a matter between you and the State.

Equally important is the fact that only the State can breach your fundamental rights. That is, the government, the legislature and the judiciary, acting through their agents. In the US, only ‘state action’ can breach human rights. In Europe, the same – only the state can be guilty of breaching human rights. The UK, the last state in Europe to formalise the judicial enforcement of human rights, spelt it out loudly in its Human Rights Act 1998: no PUBLIC AUTHORITY shall act incompati­bly with human rights. This is it very ABC of human rights law. If you misunderstand this, you had better stick to golf.

Yes, but not in Malta. We have had cases in which individuals, commercial companies and private associations have been sued in the constitutional courts for violating hu­man rights. The courts found nothing hilarious in those absurd practices. They tried the whole claim on the merits, up to judgement, finding a violation, or otherwise, committed by a private entity. The mind boggles.

Find me one reputable case, in the whole of Europe, when a private individual was sued in the constitutional courts for viola­ting the human rights of another person. Right, you can’t.

Some practical examples. My employer opens my private correspondence without my consent, or, the secret services open my private correspondence without authorisation. The opening by the security services is state action that permits you to sue for breach of human rights in the constitutional courts. The prying by my employer may give rise to private civil or criminal redress, but never to a human rights action. Though both arise from the self-same fact, one gives rise to a claim against the State, the other private illegality justifies a private action against the private wrongdoer.

Another everyday example: the police beat me up, or my partner beats me up. The police beating violates my fundamental right not to be subjected to personal violence, for which I sue the State in the Constitutional Court; the beating by my partner remains a private matter for which I can sue the actual perpetrator – but only in a private civil or criminal action. Ah, but not in Malta. If you sue your partner for a black eye in the Constitutional Court, the court will go through all the solemn motions to determine how your constitutional human right not to be subjected to black eyes has to be compensated.

In Strasbourg, the defendant is always and exclusively the state, as only the state can be a violator of human rights

This mega-mixup of the very basics of human rights law has only spawned inanities. A law did not allow a husband to contest the paternity of his wife’s child, although DNA testing had proved beyond any doubt that the wife’s child was not his. The husband sues in the Constitutional Court to annul that law as it breaches human rights. The case was, or should have been, between him and the State: is that law compatible with his constitutional human rights or is it not?

The wife and the child apply to join as defendants in that suit, and the Constitutional Court welcomes them with bouquets of flowers. So a constitutional case which should have been a clinical and abstract examination of the validity of a law, a confrontation between the victim and the State, turns into a battlefield on the relative virtues of marital cheating and marital chastity, and may the smarter cuckold win. Literally years were wasted by the constitutional courts, on whether the coitus was interruptus or whether it was of the happy-ending type.

All that was at stake in this case should have been the abstract compatibility of the civil law with the Constitution, but the case turned into a slinging match on the relative demerits of neglect and qrun. Because the Constitutional Court made no distinction at all between an action to scrutinise the constitutional compatibility of a law, and the private imbroglios of the parties. The wife’s and the child’s proper place should have been in a subsequent action in the civil court where the paternity of the child would be contested, not in the constitutional case in which a legal norm was challenged.

Of course, the State can in certain circumstances be held responsible for the private actions of individuals. The killing of a private person by a private person does not, of itself, give rise to a human rights action in the constitutional court as a violation of the right to life. But the State must have in place laws that promote life, that impose on it to investigate suspicious deaths, that protect the victim whose life is known to be at risk, that punish the delinquent and compensate the victims of homicide. If the State fails in these duties, then it – the State – can be sued for the private killing of a private person.

So, who does the victim of a private ‘human rights violation’ sue? Never the delinquent, always the State, and the State alone. If the State has failed to put in place structures to prevent, investigate and punish private actions that harm individuals, those victims have a human-rights action against the State, together with a civil or criminal action against the perpetrator. But a human rights action against the private perpetrator is egregious legal nonsense.

Of course, the legislature is free to make some acts of individuals expressly prosecutable as human rights violations against those individuals. It can, for example, prohibit discrimination based on race, in lettings or in employment.

A classic US case, whose Constitution prohibits racial discrimination, is instructive. Several high-end residential enclaves in the US had contracts prohibiting owners from renting or reselling their property to black people. Although manifestly discriminatory, the private contract was not, in itself, then deemed to violate human rights. But when the other owners sued to enforce the black veto, the court refused: reigning in the court to empower racial discrimination would turn that private veto into state action, and hence be impermissible.

All violations of human rights in Malta are now appealable to the European Court of Human Rights in Strasbourg. I wonder how a human rights violation committed by a band club would be appealed in Strasbourg: Spiteri vs St Trophimus Philharmonic?

In Strasbourg, the defendant is always and exclusively the state, as only the state can be a violator of human rights. The ECHR never allows private individuals to appear or join as defendants. At most it receives observations from them exclusively on legal issues, as ‘friends of the court’.

To the argument that the Constitution does not expressly say that individuals cannot be sued for breaches of human rights, I answer: nor does it say that water is wet. Principles that are glowingly self-evident should not be written down. But the Constitution enumerates many limitations to the enjoyment of human rights – and ALL these limitations refer – only and exclusively – to State action.

So am I to understand that both state and private individuals can be sued for violating human rights, but then, the only defences permissible are public interest restrictions which the State alone can claim?

Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.

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