The European Court of Human Rights (ECtHR) in Strasbourg has its own solemn Ten Commandments, of which it is both jealous and assertive. Foremost looms the one which bars it from considering human-rights complaints when the victim had failed to exhaust remedies available in the country accused: “The Court may only deal with the matter after all domestic remedies have been exhausted.”

For reasons easily understandable. Every sovereign country has in place, or should have, its own internal systems of ensuring human-rights justice. The ECtHR encroaches on this sovereignty solely after the State has been given every opportunity to redress a violation of human rights, and has failed to. Only then does interference from an international authority kick in.

The ECtHR invades national sovereignty exclusively after the domestic courts fail to redress violations. It chides the victim: you neglected to use the remedies available in your country? Out! Strasbourg rejects hundreds of human-rights complaints solely because the victims had not used remedies available in the national system.

That is the unrelenting rule. But with some countries it has to be different. Malta is one of those special states.

Its constitutional courts are so ineffective in protecting some human rights, that Strasbourg has given up on Malta doing the right thing. It tells the victims: you cannot, in some violations, expect human rights protection from the Maltese courts. Go ahead, ignore the non-exhaustion ban, and bring your cases directly here. That is the ECtHR’s way of giving a vote of no confidence to the Maltese constitutional courts.

The pioneer who first questioned the ability of Maltese courts to remedy some human rights violations was Joe Brincat, former Labour minister for justice. In 2000 he took a complaint straight to the ECtHR arguing that, throughout the period of detention on remand, his client Ben Ali could neither obtain from the Malta courts a review of the reasonableness of the criminal suspicion against him nor a speedy review of the lawfulness of detention. What? retorted a scandalised Attorney-General. The criminal courts could have given all the redress the victim was seeking. And so could the Constitutional Court.

Strasbourg made short shrift of the government’s pleadings. Remedies that a victim had to exhaust before petitioning the ECtHR must be “accessible and effective”. Maltese law did not (then) provide relief for those complaints. And as for the constitutional courts, well, better overlook them. Proceedings before them were too “cumbersome” to satisfy the requirement that review of the legality of detention should be “speedy”. Malta paid damages to the victim.

Dr Brincat scored again in the 2003 Kadem case, about extradition. The government pleaded in Strasbourg that the applicant’s complaints could well have been addressed by the Maltese courts. The ECtHR, rather impatiently, disagreed. Malta again paid damages.

For a third time, in the Stephens case of 2009, Dr Brincat successfully resisted the government’s plea that the applicant had failed to exhaust domestic remedies – he had not challenged the deficits of the constitutional court – by a fresh action in the constitutional court. Strasbourg again dismissed this plea: one set of constitutional proceedings was already cumbersome. Why expect that the outcome of a cumbersome procedure be challenged through another cumbersome procedure?

In 2010 the Strasbourg court revisited the question when victims of human rights violations in Malta should first exhaust domestic remedies. The authorities detained Massoud, asylum seeker, at length while issues of entitlement to asylum and procedures for repatriation proceeded lethargically in Malta. He had two complaints: that Maltese law did not provide a speedy remedy against his detention while his asylum was being decided, and that his detention after the determination of his asylum claim was unlawful.

Instead of taking his complaints to the Immigration Appeals Board and to the constitutional courts, lawyer Michael Camilleri headed straight to Strasbourg. This temerity appalled the government, an outrage that however left Strasbourg unimpressed. The Immigration Board, even assuming it qualified as a judicial authority, lacked powers to release a detained immigrant, and anyway fails to decide speedily complaints of deprivation of liberty, as required by the Convention. Sometimes it took as long as 54 days to consider habeas corpus complaints – exceedingly long for alleged illegal detention.

Strasbourg tells the victims: you cannot, in some violations, expect human rights protection from the Maltese courts

And constitutional proceedings? Their length and complexity ensured no “effective” remedy existed before petitioning Strasbourg. The government raised the same objections to the second complaint, but the Court condemned Malta in damages, rejecting them all.

In the Saliba case (2011) filed by Prof. Ian Refalo, the Strasbourg Court dismissed the government’s plea that the expropriated applicants should have first tried to address their complaint elsewhere. Again, Dr Tonio Azzopardi in the Bellizzi “fair hearing” case (2011) successfully opposed the government’s plea that the alleged wrongdoing of the Constitutional Court should first have been challenged by a fresh application to the constitutional courts. Useless ‘remedy’, said the ECtHR.

In the next case, Mr Mikalauskas, charged with drug offences, alleged inhuman and degrading treatment in prison. Dr Brincat took these complaints directly to Strasbourg, without first applying to any Maltese court. Government freaked. Strasbourg in 2013 rejected all Malta’s objections. In cases of proved inhuman treatment, the domestic courts should be able to award moral damages. But Maltese law only allows material damages in actions for damages, so this would have been no remedy at all. The government was also unable to show that actions in the constitutional courts would provide speedy remedies. Malta again paid compensation for other violations.

Strasbourg faced a similar problem in 2013 in the Suso Musa case. The applicant had been detained 546 days in an immigration context. The ECtHR could not ignore that immigrants’ habeas corpus applications against alleged illegal detentions were still pending in the constitutional courts six years after they were lodged! Dr Neil Falzon won for his client massive damages in Strasbourg without having “exhausted domestic remedies”, in a cogently-argued judgement by that Court.

The Brincat case (2014) was different. Victims of asbestosis sued the government directly in the constitutional courts in Malta. The lawyer of the applicants, Dr Juliette Galea, rightly instituted their claim in the constitutional courts but these laughed her action out. What? Disturb the constitutional courts when she could easily have obtained redress through an ordinary civil action in the ordinary civil courts? Out!

Dr Galea then took her clients’ claim to Strasbourg, without wasting time on a useless action in the Maltese civil courts. Audacity that shocked the government: petitioning the ECtHR without first exhausting domestic remedies! And defying what the Constitutional Court had decreed!

Strasbourg swept that nonsense away. Actions for redress arising from death or grievous illness caused by asbestosis were claims about violations of the right to life – which necessarily require the payment of moral damages as part of the redress. But Maltese law bans moral damages in a civil action, so that action would have been egregious time-wasting futility. Maltese victims, Strasbourg reiterated, in the peculiar circumstances of this case, were perfectly entitled to bypass the civil courts and take their case directly to Europe. Malta again paid hefty damages.

The government also pleaded, in the Dimech (2015) and Borg (2016) cases, Dr David Camilleri leading in both, that an issue about the conflicting jurisprudence of the Constitutional Court in the matter of legal assistance during police interrogation, should have been first solved domestically. Strasbourg disagreed and accepted to enquire into the merits.

Four cases culminating in Abdilla, (2018, Dr Yanika Bugeja), repeated that those alleging inhuman conditions of prison detention (similarly to illegality of immigrant detention), need not exhaust the inefficient remedy of applying to the constitutional courts. Straight to Strasbourg.  This followed Story, (2015, Ms Monika Gasiorowska), Pinon and others (2017, Drs Leontine Calleja, Fransina Abela and Kevin Dingli), Soto, 2017, (Dr Kevin Dingli).

The ECtHR decided its last Malta two cases, Tagliaferro and Coleiro, only recently. The Maltese constitutional courts earned yet another trashing in Strasbourg. The owners of expropriated property asked the constitutional courts for compensation. The court acknowledged the State’s obligation to pay, but instead of establishing the compensation, referred the victims to the Land Arbitration Board – which, incidentally, that very Constitutional Court had declared not to be an independent and impartial tribunal.

The lawyers, Prof. Refalo and Dr Pierre Lofaro, ignored the Constitutional Court’s injunction to try the LAB.

They took their clients’ case directly to Strasbourg, retrieving there the substantial compensation the constitutional courts had failed to award them.

That’s 16 Malta cases. But caution: the non-exhaustion ban still applies to Malta. It is only ‘waived’ by the Strasbourg court in cases similar to the above.

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

This is a Times of Malta print opinion piece

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