Human Rights

Human Rights lecture 2
Reference: Chapter 4 of the constitution of Malta European convention for the protection of human
rights and fundamental freedoms.
The background of the European convention is that after the Second World War, there was an effort
to put in place a machinery to control and avoid the human rights abuses that happened during the
war. The original contracting parties were European states who signed in Rome in 1950 this
convention.
Apart from this convention, the original 1950 text, there were subsequent additions. An addition is
called a protocol. There were 14 protocols and the last one is not yet enforced. The import protocols
refer to the right to enjoyment of one’s possessions, rights, excess to education, fair and free elections
at regular intervals. Other amendments referred to the right of a person not to be tried twice for a
criminal offence and also the progressive abolition of the death penalty. Originally, the death penalty
could be applied to war crimes, subsequently even that exception was removed so that the death
penalty was not allowable in any circumstance.
What do we mean by Human Rights?
Human rights that are protected here refer principally, but not exclusively, to the political
rights. There is generally a classification of 3 categories of human rights, normally known by
generation.
 The 1st generation of human rights refer to the political rights and relate to minimum
guaranties in proceedings and rights of freedom of expression, association and
conscience. These rights are derived from the 19th centaury, ideas of freedom of
expression.
 The 2nd generation of human rights refer to social and economic rights such as the
right to employment and the right to basic, social and medical care. These are not
generally enforceable at the current stage of development. This means that a citizen
cannot action his government on the basis that he or she is unemployed. The current
stage of development has not provided a human rights protection machinery for such
situations.
 The 3rd generation of human rights refer to environmentally cultural and artistic rights.
The subject here of development is not so much the right of the individual but the
right of future generations. The thinking behind this is that the environment, climate,
historical and artistic patrimony of a country belong to not merely a particular
individual but to present and future communities. Here enforcement is principally at
multi-state level(international) and is still at very limited stage of development.
Legislative position in Malta
Chapter 4 of constitution of Malta speaks about the rights and freedoms of the individual.
This chapter was in the 1964 independence constitution and was updated over the years. This
is sometimes called as a bill of rights.
The first specific human rights chapter in a Maltese constitution was in the 1961 version of
the constitution. Chapter 4 has drawn very significantly from the European convention and
there is a clear parallel between the structure of chapter 4 and that of the convention and the
relative articles. Now we shall be looking at them simultaneously.
In 1967 Malta joined the European convention of the human rights in 1966 but what was
known as the right of individual petition was not yet granted. The next important
development was in 1987. In 1987, we have chapter 319 of the laws of Malta which are
known as the European convention act. It means that a state has obligations at international
level to its citizens or those who pass in the territory. In 1987, through the enactment of the
European convention act, the convention for the protection of human rights and fundamental
freedoms was transported as part of local domestic law.
It became therefore part of the legal system and not merely an obligation of the state to secure
certain human rights. This also brought with it the right of individual petition. This meant that
a person/citizen, a local company or organization is entitled to bring its case directly against
Malta in an international forum, which is the European court of human rights. In general
terms, a citizen has to first exhaust what are known as local domestic remedies before taking
a procedure to the European court.
The European court is therefore vested by the terms of the convention in deciding whether
there has been violation of the rights protected by the constitution and provide a remedy there
too. Both the convention and specifically chapter 319 provides method of enforcement of
judgement of the European courts. It is important that the two supranational institutions of the
council of Europe and the European union are kept distinct and a common error of confusing
them is avoidable.
The European Union has 27 member states and originally started off as an economic union
and started its own cultural and wider reach than certain functions of the union. Membership
of the council of Europe includes:
 former states of the soviet union

 Turkey, which is not a member of the EU
 Balkan states which also are members of the council of Europe but not
part of the EU.
On the other hand all the 27 European members are in the council of Europe. The court of
Europe sits in luxenboerf while that of the council of Europe has its seat in the French town
of Strasberg.
To conclude, there are 3 levels of fundamental rights. There is chapter 4 of the constitution,
there is then the local transposition of chapter 319 and finally the European convention itself
which imposes on its member states not merely the obligation to secure and guaranty the
rights protected in the convention but also the right to citizens and those present with the
jurisdiction of individual petition.
Protection of the right to life
We shall be looking both at the European conventions and the protection of the human rights.
Article 33 of the constitution and article 2 of the convention. The first rule is that originally,
the death penalty was only allowed following a court judgement in respect of the conviction
of a crime. Now this has been overtaken and superseded by the protocols which were referred
to earlier which first prohibited the death penalty except in time of war and later extended it
to a total prohibition. Note that for these protocols to be enforced in a particular member
state, such state h as to accept them. Note that not all EU m embers have accepted this
prohibition. Malta accepted prohibition to remove the death penalty.
The other part of the right of life refers to the right of use of force. There is no deprivation of
life in contradiction to the article, when this follows from use of force, which is no more than
absolutely necessary. There are 3 instances mentioned.
1) Defence of any person from unlawful violence.

2) To affect a lawful arrest or to prevent the escape of a person lawfully detained
3) To control and quell (calm down) a riot or insurrection.
The European court has emphasised in the circumstances the text of proportionality, which
means that the assessment will be whether this is a proportioned reasonable act of the
moment.

Human Rights

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Human Rights lecture 2

What do we mean by Human Rights?

 former states of the soviet union

Protection of the right to life

1) Defence of any person from unlawful violence.

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