At the end of January, I had the pleasure of welcoming to Strasbourg Chief Justice Joseph Azzopardi. The occasion was the solemn opening of the judicial year of the European Court of Human Rights (ECtHR).

Since 2005, the official opening of the judicial year has been accompanied by a half-day seminar intended to tackle a theme of interest to both the judges of the Strasbourg Court and the judges, especially those of the higher courts, of the 47 member states of the Council of Europe.

These seminars are organised in the wider context of the programme of ‘dialogue with judges’. Within this programme, meetings are also held, either in Strasbourg or in the state concerned, between delegations of judges to exchange views on matters of common interest. One of the latest of these meetings, in which I participated, was held on February 15 at the seat of the Conseil d’Etat in Paris, where the topics discussed included the protection of personal data, the role of the French administrative judge in protecting prisoners’ rights, and Protocol No. 16 to the European Convention on Human Rights (ECHR).

What is the purpose of these exchanges?

Over the last two decades, the ECtHR has placed increasing emphasis on its proper role in the European human rights protection system. Contrary to popular belief, it is not the Strasbourg Court that is primarily called upon to secure human rights and freedoms in the 47 jurisdictions. Article 1 of the European Convention, often ignored because it is not a substantive provision, clearly states that such duty falls squarely on each high contracting party, that is on each state and, therefore, on the judicial authorities of each state, as well as on the legislative and executive branches of the government of every state. It is only when the state fails in this duty, or is clearly seen to be incapable (or unwilling) to perform its duty, that the ECtHR steps in.

There are myriad ways in which a state may fail: the higher domestic courts may not apply the substantive provisions of the convention correctly and in accordance with the copious case law of the ECtHR or the laws in force in the state may provide protection for human rights violations only in theory but not in practice and the higher courts may be unable or unwilling to remedy this.

The higher courts may also be unable or unwilling to grasp the principle of proportionality inherent in those provisions of the ECHR that allow interference in fundamental rights or freedoms under certain condition. They may even misinterpret the limited purport of such conditions. Or the higher courts may have difficulty grasping or applying the concept of the state’s positive obligations in the context of human rights protection under the convention.

This ‘positive obligations’ aspect is still underdeveloped in Maltese human rights case law, which may be due to lawyers not being fully au courant with the notion. Many of the substantive provisions of the convention are couched in negative terms: a State shall not do this or that. 

Some positive obligations are expressly present in, or necessarily flow from, the text of the Convention, like the obligation to protect the right to life by law, to provide courts and legal aid in criminal trials and the positive obligation to hold free elections.

Most other positive obligations have been read into the Convention by the Strasbourg Court to make it a living instrument that protects fundamental rights and freedoms in a practical and effective way – “effective recognition and observance”, in the words of the preamble to the Convention.

The legislative and executive branches of government should facilitate, not hinder, the ‘dialogue with judges’

These positive obligations cut across the whole spectrum of rights and freedoms protected by the Convention. 

The actual interference with a right or freedom may emanate not directly from the state itself but from third parties. However, if the state knew or ought to have known of the likelihood of such interference and did nothing to put in place the necessary legal or administrative mechanisms to prevent and/or punish such conduct, it is the state that will be held to be in breach of the Convention.

Here are just some instances. The failure of the Irish State to have in place an effective mechanism to protect primary school children from sexual abuse by adults amounted to a breach of article 3 (prohibition of inhuman or degrading treatment).

When a man covertly filmed his stepdaughter in the bathroom, Sweden was held responsible for a violation of article 8 (right to respect for private life) because Swedish law at the time was insufficient to prohibit and punish such covert filming.

The Strasbourg Court has also recognised a state’s positive obligation to protect peaceful demonstrators from interference by counter-demonstrators.

In very lay and very simple terms, ‘positive obligations’ is a transposition into a human rights context of the state’s duty not to act negligently in ordinary civil matters.

When successive Maltese governments buried their head in the sand and failed to take reasonable and appropriate measures to protect dockyard workers from exposure to asbestos, the ECtHR, in 2014, found the state responsible for a double violation under articles 2 (right to life) and 8 (right to respect for private and family life). This judgment was recently followed by the First Hall of the Civil Court in its constitutional competence (Mr Justice J.R. Micallef) in a case instituted by the heirs of a dockyard worker.

Of course, dialogue works both ways. The ECtHR has sometimes modified or clarified its case law in response to persuasive arguments made in judgments by the highest courts of a particular jurisdiction. This has happened, for instance, in connection with the right to examine witnesses in a trial and, more recently, in a case coming from Denmark in connection with the preventive detention of potential football hooligans.

To help and enrich this dialogue, the Supreme Court Network (SCN) was set up in 2016. It serves as a practical means of exchanging relevant information on Convention case law between the highest courts in the 47 member states and between those courts and the ECtHR.

The management of the SCN has been entrusted to the Office of the Jurisconsult of the ECtHR. To date, 73 courts from 36 states of the Council of Europe are members of the SCN. Although Malta has expressed an interest, neither the Court of Appeal nor the Constitutional Court has yet joined.

Another instrument which highlights the primary role of the higher courts of member states in the Convention system is Protocol No. 16, under which domestic courts may seek an advisory opinion from Strasbourg on questions of principle relating to the interpretation or application of the Convention. So far, 11 states have acceded to this protocol. Malta is not one of them.

One protocol which Malta has both signed and ratified and which is in force with regard to Malta is Protocol No. 12 – the general prohibition of discrimination. More than three years after this protocol was signed and ratified, it has not yet been transposed into the European Convention Act, thereby preventing the courts from giving full effect to this fundamental right.

The legislative and executive branches of government should facilitate, not hinder, the ‘dialogue with judges’.

Chief Justice Emeritus Vincent De Gaetano is judge of the European Court of Human Rights.

This is a Times of Malta print opinion piece

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