So far, we have seen how the courts in Malta have disabled the basic law by proclaiming the Principles of the Constitution to be irrelevant waste, and how they have trivialised the Constitution by allowing private persons or entities to be sued for human rights breaches. Today we will have a look at how the constitutional courts have subverted the Constitution, ludicrously and fatally, by refusing any redress to victims of human rights abuse, “because they have not exhausted ordinary remedies”.

How often have the powerful got away with human rights abuse in the Maltese constitutional courts, and the victims left the courts empty handed, because “they had failed to exhaust ordinary remedies”? Often, I can tell you. The bottom line: the violator is rewarded with impunity, and the victims take home resentment instead of redress.

Over the past 50 years we have been deafened by the courts with barrages of superlative drivel about the ‘obligation’ to exhaust all other remedies, before bothering constitutional courts with human-rights complaints. The justice system has short-changed human rights litigants, slamming then for pestering the wrong judiciary, as “the constitutional courts are the courts of last resort”.

They have dismissed victims with the hoax that a constitutional action for human rights redress is ‘an exceptional action’, as the rule is that a victim has first to exhaust all other ordinary, non-constitutional, remedies before disturbing the constitutional courts.

Nonsense. The Constitution says exactly the opposite. And very clearly too.

Read Article 46: Any person who alleges that his or her human rights have been violated, is to apply TO THE CONSTITUTIONAL COURT (First Hall of the Civil Court) for redress. Then, not to leave any margin of doubt that this is the rule, the Constitution repeats that the constitutional court SHALL HAVE ORIGINAL JURISDICTION to hear and determine any application by persons who claim to be victims of human rights violations. So, the rule is: all human rights violations are to be addressed to the constitutional courts. So, the courts of FIRST resort are… the constitutional courts, dumbo.

Then, as an exception to this rule, the supreme law adds that the constitutional court may, however, decline to exercise its powers if it feels that the victim could have obtained redress under other laws. Could it be clearer that the court established by the Constitution for redressing human rights violations is the constitutional court? Could it be clearer that, only exceptionally, may the constitutional court fail to redress a human rights breach?

Sadly, the courts have delighted in pulling all this inside out. Many judgments refused any protection to human rights victims, because the petulant pests took their human rights complaint to the constitutional court – exactly where the Constitution enjoins them to take it. Government wins (so what’s new?) and the victims remain victims… because the constitutional court is a court of last resort! Because the constitutional court is not to be disturbed if not exceptionally!

You have to weep in anguish. What should have been the ultimate exception has now become the first rule, what should have been the rule has now become the discarded nuisance not allowed to pollute the rarefied tables of the constitutional judges. And the violator wins impunity and the victims win despair.

Not happy with turning the exception into the rule, the courts then apply them both abusively. Applicants are required to exhaust all other conceivable remedies before bothering the constitutional courts – but even plainly ineffective remedies? A remedy which is not effective is not a remedy at all. Well, you should try anyway, yawned the guardians of our human rights, shaking the dust off their shoes. There are scores of examples I could quote, but will settle for a few.

Workmen who contracted asbestosis, a life-threatening condition, in the government docks, felt that their fundamental right to life had been violated, and sued the State for human rights redress. The constitutional judiciary laughed their claims out of court in record time, throwing the costs at them too. Stop wasting our time, you should have sued for ordinary damages in the ordinary civil courts.

It had to be the Strasbourg court to deflate this marvellous aggression against rationality

Now that is, let’s say, impenetrable reasoning. Maltese civil law allows compensation for real damages but prohibits compensation for pain and suffering. Under human rights law, on the other hand, the only effective remedy for a breach of the right to life is the payment of real damages, together with additional compensation for pain and suffering. So the Maltese courts denied the victims any access to human rights protection – because they failed to exhaust a remedy which is, by its very nature, ineffective. It had to be the Strasbourg court to deflate this marvellous aggression against rationality.

Would you expect otherwise, when Maltese courts have thrown out human rights redress cases for ‘non-exhaustion of other remedies’ even if these other ‘remedies’ were manifestly inadequate? Expropriated landowners had their claims dismissed by the constitutional courts because they should have sued for fair compensation before the Land Arbitration Board. The owners pleaded that proceedings in this board always dragged over ‘tens of years’. The constitutional courts giggled off this lament by the victims as a ‘non-starter’ (their words), even though this Land Arbitration Board takes ‘tens of years’ to decide. The victims had neglected a manifestly ineffective ‘remedy’, so they had to expect punishment.

Thankfully, in 2014, the Constitutional Court, trying to reverse decades of manic denials of justice, laid down rational parameters as to when constitutional courts can refuse to hear a human rights action: only when the alternative remedies available are practicable, accessible, effective, adequate and complete. Finally.

This tragic fiasco was the result of a double misreading by our courts: of both the Constitution and of the European Convention on Human Rights. Under the Convention, an applicant cannot take a complaint to the Strasbourg Court unless he has first exhausted all remedies available under domestic law. Ħeqq, if that is what they do in Strasbourg, we can do it in Malta too, no?

Wrong again. The Strasbourg court is an international court which only works by invading the sovereignty of those European states that recognise its jurisdiction. So it will only take a case as a very last resort, after all possible avenues of redress available locally have been tried and have failed. Before trespassing on national sovereignty, Strasbourg first allows the State the most ample opportunity to put things right, to avoid ‘foreign interference’ into its sovereignty kicking in. The refusal of the Strasbourg court to touch human rights complaints if the victim has not exhausted domestic remedies is fully justified. The Maltese eccentricity is not based on any compelling reasoning, but, to compensate, on several compelling inanities.

The failure by the Maltese constitutional courts to recognise the special nature of the remedies required to redress human-rights violations has given rise to amazing, and shaming, developments in the Strasbourg court.

While all applicants to Strasbourg must have first exhausted domestic remedies, special exceptions have been made in Strasbourg for cases against Malta. The Maltese courts have repeatedly thrown out human rights complaints because the victims had not exhausted what are manifestly ineffective remedies.

Take this. Claims of unlawful deprivation of liberty (Habeas Corpus) require instant responses. The old doctrine was that the judge had to drop everything else and see to it immediately, etiam in balneo (even if he is having a bath). In Malta, the ordinary ‘remedy’ for migrants to challenge unlawful detention, took, at an average, several years. For the Maltese courts, being deprived of your liberty while its lawfulness was being, ever so leisurely, examined, was a remedy you had to exhaust anyway, not to disturb the constitutional judge splashing in his lukewarm shower.

Some migrants, exasperated by the tormenting length of their detention, took their complaint to Strasbourg directly, bypassing completely the Maltese constitutional courts. Blasphemy, squealed an outraged Attorney General before the Strasbourg court, they have not exhausted domestic remedies! The bitter derision of the European judges could be heard on the other side of the globe. When a domestic ‘remedy’ against unlawful detention is so inefficient that “it was still pending six years after it was lodged”, then the victims can skip those offensively futile ‘remedies’ and complain to Strasbourg directly. Our ‘remedies’ received the international certificate of efficiency they had so diligently striven after.

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

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