Malta tops many records in the European Court of Human Rights in Strasbourg. Should we mention which records, or should we gloss over with a charitable L-aqwa f’kollox? Sadly, Malta is truly l-aqwa in Strasbourg, but only in infamy. We have stood out most eminently – that our eminence has been in the more disgraceful pageants is beside the point.
Up to 1987, Malta was the only country in democratic Europe that refused recourse to the Strasbourg court as Europe’s supreme watchdog against human rights violations. Every other more-or-less free country in Europe had accepted that anyone could sue it in the ECHR – every European country, except Malta. Even paragons of human rights sensitivity, like Turkey, had submitted to the jurisdiction of the Strasbourg court and allowed any person to challenge their human rights violations in an independent international tribunal. All free Europe, with the sole and sorry exception of Malta. Malta finally gave in, halfway through 1987.
But joining the Strasbourg court only gave rise to two other dismal records. Of the judgments examined on the merits by the Court’s Chambers or Grand Chamber, Malta is the country with the highest percentage overturned and rubbished by the Strasbourg court. Far more than Russia, far more than Azerbaijan, far more than Bulgaria or the Ukraine, as a percentage of the cases examined on the merits. The last time I counted, 85 per cent of the judgements of our Constitutional Court had been found to be human-rights garbage by the Strasbourg chambers. Not half of them, not three quarters, but 85 per cent. The constitutional courts of Malta only get right 15 out of a hundred of the cases examined by the Strasbourg Chambers. The other 85? Well, it’s not that they don’t try, but they just don’t get it.
And 85 per cent wrong would be the more generous way of working it out – that figure is based on how many human rights cases Malta loses in Strasbourg. In several instances, the ECHR finds that more than one human right had been violated against one applicant – multiple violations in the same lawsuit. If the estimate had to be calculated on the number of human rights violations scorned by the Maltese courts but established in Strasbourg, the percentage would soar even higher. Maybe closer to 95 per cent, in which the international court certified the total inadequacy of many Maltese constitutional judges to deal with the very basics of human rights law. Shouldn’t the University have a course for unlearning everything you thought you knew about constitutional and human rights law?
Now place this grand national fiasco against its more meaningful background. Every case Malta loses in the Strasbourg Chambers is not only a loud certificate of incompetence or malignity handed over by the supreme court of Europe to the supreme court of Malta. More tragic than that, every case lost in Malta and won in Strasbourg means that a victim of human rights abuse was left unprotected and unredressed in Malta by the court whose only function it was to provide that protection and redress.
The victims of human rights violations begged the Maltese courts to protect them, the judges showed them the middle finger and hurried to a champagne reception with the minister. They were happier to side with the violators than with the victims. Every time the sufferers lose in Malta and win in Strasbourg, they add another case in which the Maltese judges became the accomplices of the violators of human rights, and the bullies of their victims.
That 85 per cent statistic does not show the full range of this human-rights tragedy. That only reflects the situation of those cases that actually went to Strasbourg. How many pre-1987 judgements would have been overturned in Strasbourg had it been possible then to take the complaint to that court? Let me guess: all. How many victims of human-rights abuse lose their case in Malta and are then too weary, or scared of the costs, to appeal to the ECHR? My answer, as an overworked human-rights lawyer: many. Be sure that if these variables were also factored in, the bottom line would be closer to 95 per cent – all cases in which the constitutional judges of Malta betrayed their duty to stand up for those cheated of their human rights by the State – and instead preferred to become accessories of the violator.
The very first case against Malta in the Strasbourg court proved to be the herald of so many that followed. As a debut, the Constitutional Court of Malta found absolutely nothing wrong with Parliament fancying itself a criminal court to jail by majority vote the political adversaries of the party –and thereby encouraged Parliament to jail them. The ECHR instantly knew what festering thrash it could expect from Malta. Intellectual and moral pygmies then fuelled the injustice machine. The supreme court of Malta just told Strasbourg it hadn’t the faintest clue what an independent court was supposed to mean. And, when the Constitutional Court of Malta applauded siblings judging each other and cheered judges judging themselves, it just told the Strasbourg court it had no clue what an impartial court means. From then onwards, a cascade of shameless judgements, of shameful defeats, the avalanching of disgrace.
The last time I counted, 85 per cent of the judgements of our Constitutional Court had been found to be human-rights garbage by the Strasbourg chambers
We have had long series of cases in which the Malta constitutional courts found nothing wrong with the laws which hollowed out the right to private property, or which gave laughable redress when something wrong was found. We had case after case where Strasbourg had to set right the erratic Maltese judgements on the right of suspects to be assisted by lawyers; we have had cases in which the right to fair trial was made a mockery of by the Maltese courts, cases where the rights of asylum seekers were trampled on by our courts, where unlawful arrests and detention remained unredressed by our courts, where the rights to privacy and family life were ransacked by our courts, where freedom of expression was met with hostility and its repression rewarded by the Maltese courts. You do not reach the top in Europe without trying hard.
Maltese constitutional courts seem to have a natural talent to get it wrong. They get it wrong when they refuse to take on human rights complaints, they get it wrong when they accept to take on a complaint, but then find there was no violation, they get it wrong when they find a violation and then give penny-pinching redress. No wonder Malta’s judiciary has the absolute record for being the most widely clobbered in the whole of Europe, and that Malta’s judgements are the sweepings of Strasbourg. No wonder a joke in Strasbourg runs: Lawyer: “My client challenges a judgement of the Maltese Constitutional Court”. Judges: “And do you have any other grounds for appeal?” Strasbourg’s is the supreme court of 47 European countries. Malta easily tops the other 46.
According to the Convention, failure to redress a human-rights violation amounts, on its own, to another, and separate, human-rights violation. And, when this failure is attributable to the courts, this makes the court itself the violator of human rights. Not the government, not Parliament, but the very courts set up to protect and reinstate human rights, become themselves delinquent violators.
And then there is a third human-rights primacy Malta can boast of. According to official statistics, Malta, has, per capita, the second highest rate of violations of human rights among the 47 States of Europe. Far higher than Azerbaijan, Russia, Turkey and the Ukraine. Malta is only second to Slovenia – only because Slovenia had no law which allows delays in court proceedings to be redressed in the Slovenian courts. Dozens of Slovenian court-delay cases went directly to Strasbourg, bloating Slovenia’s record negatively. If it was not for this particular weighting, Malta would again be at the very very top of Europe, having an astounding 102 violations per million inhabitants. (Bad news for Malta. Slovenia has now changed its law, to allow delays in judicial proceedings to be redressed in-house. This guarantees that future statistics will show Malta as the highest human-rights violator in Europe). Spain and Germany top the best in Europe: only two violations per million inhabitants. Malta beats them 50 to one.
Malta flaunts these records among 47 countries mostly because the victims of human-rights violations often obtain no protection from the Maltese courts. Their last resort is to take their case to a court where human rights are taken seriously. There, our courts will continue being reviled, so long as some Maltese judges go on thinking that their only way of beating oblivion is by publicly making chumps of themselves in an international court.
Giovanni Bonello served as judge of the European Court of Human Rights in Strasbourg for 12 years.