10 years on - Protocol No. 12 to the ECHR is still not part of Maltese law, despite being in force since 1 April 2016

10 years on - Protocol No. 12 to the ECHR is still not part of Maltese law, despite being in force since 1 April 2016

Published April 01, 2026

Protocol No. 12 to the European Convention on the Protection of Human Rights and Fundamental Freedoms (“ECHR”) is still not part of the laws of Malta, despite its entry into force in Malta as an international treaty on the 1 April 2016

Introduction

Protocol No. 12 was adopted by the Committee of Ministers of the Council of Europe on the 26 June 2000 and was opened for signature by contracting States on the 4 November 2000, being the 50th anniversary of the signing of the ECHR at Palazzo Barberini in Rome.  After the required threshold of ten (10) ratifications was reached, the Protocol came into force on 1 April 2005.  Malta ratified the Protocol on the 11 December 2015 and came into force on the 1 April 2016: ten (10) years today.

Importance

The essence of Protocol No. 12 lies in Article 1, which provides for a general prohibition of discrimination and its foundation as an independent right. Although Article 14 of the ECHR forbids discrimination, the provision does so only in relation to the enjoyment of the rights specifically protected by the Convention. Protocol No. 12 goes further, establishes a general prohibition of discrimination in the exercise of any right provided by law or by public authorities, and creates a free-standing equality clause, extending protection beyond the structure and operation of Article 14.  The Protocol addresses discrimination by public authorities in a broad range of administrative and legislative actions.  The leading judgement on the Protocol are Sejdić and Finci v. Bosnia and Herzegovina (Grand Chamber – 22 December 2009).  The Protocol does not impose a general duty to eliminate all inequalities but only those that constitute unjustified discrimination; not every difference in treatment is unlawful.

Obligation

By ratifying Protocol No. 12, Malta did undertake an international obligation to respect this enhanced and specific prohibition of discrimination. Once ratified, the Protocol became binding under international law and fell within the supervisory jurisdiction of the European Court of Human Rights (“ECtHR”).

Absence

Yet the absence of domestic implementation means that Maltese courts cannot apply Protocol No. 12 when adjudicating discrimination claims. 

This fact was confirmed by the Constitutional Court in its judgements in re “Jonathan Ferris v. Commissioner of Police” of the 19 January 2026, in re “Mark Calleja v. Minister of Education and Emplyment et.” of the 25 June 2025, and in re “Philip Pirotta et v. The Hon. Prime Minister et.” of the 25 June 2025. 

This is a serious shortcoming that remains unaddressed till this very day, despite repeated calls by the Office of the Ombudsman in its public statements in Malta and abroad, in its reports and annual Ombudplans.

Ratification ten years back was a meaningful step forward.  However depriving persons from seeking redress before the Maltese courts because Protocol No. 12 is not part of the laws of Malta is a fundamental concern that remains unresolved.  A decade on, the absence of effective domestic remedial action continues to undermine the sound objectives that ratification brought about.

Balance

The ECHR incorporates a delicate institutional balance between national authorities and the supervisory jurisdiction of the ECtHR.

Central is the principle of subsidiarity, whereby the primary responsibility for protecting Convention rights lies with the domestic legal order of each contracting State. The Strasbourg Court acts only as a supervisory mechanism when domestic systems fail to secure those rights.

Against this background, the fact that Protocol No. 12 to the ECHR in Malta was not made part of the laws of Malta and therefore cannot be invoked before Maltese courts gives rise to doubts on the implementation of the principle of subsidiarity which is fundamental in the Convention.

Subsidiarity

Through their domestic institutions, contracting States are the primary guarantors of the rights that derive from the Convention.  The ECHR was made part of the laws of Malta on the 19 August 1987 by means of the European Convention Act (Chapter 319 of the laws of Malta).  To date, Protocol No. 12  is still not part of Chapter 319.

The ECtHR acts as a subsidiary supervisory body. It intervenes only after all domestic rights of action have been exhausted and when domestic legal systems fail to protect adequately rights arising out of the Convention.

The logic is both constitutional and practical.

The Convention is an international treaty, not a supranational constitution. Its effectiveness therefore depends largely on the willingness and ability of national institutions to enforce the rights it guarantees.

Subsidiarity presupposes that persons should be enabled to seek  effective protection within their own national legal systems before turning to Strasbourg. Because Protocol No. 12 is not part of the laws of Malta, persons seeking protection have to turn to the ECtHR directly to the exclusion of Maltese courts.

Tension

When a State ratifies a Convention protocol but does not transpose the provisions of the protocol into its domestic corpus juris a structural tension emerges between international obligations and domestic enforceability.  In the case of Malta, ratification means that the State is bound by Protocol No. 12 under international law. However, the lack of domestic implementation means that persons cannot rely upon it before Maltese courts.

Weakness

If a right exists only at the international level but not within domestic law, national courts cannot apply it directly. Consequently, the domestic legal order may fail to provide the first line of protection envisaged by the Convention.

If a right cannot be invoked domestically, the “exhaustion” requirement becomes a problem because although the Strasbourg Court may still examine a case, the absence of domestic adjudication deprives the Court of the benefit of national judicial reasoning, which is so important and relevant for persons who want to seek redress before their domestic courts rather than be obliged to proceed directly to Strasbourg to avail themselves of the protection of their rights. 

This matter is most relevant taking into account that the Strasbourg Court has thousands of pending cases to consider and decide, despite its tremendous efforts and those of its support staff.  Therefore, resorting directly to the ECtHR should not in principle be the right way to treat persons in Malta that claim freedom from discrimination as determined in Protocol No. 12.

The Convention functions most effectively when national courts are in a position at law to apply its standards internally. When this does not happen, then the Strasbourg Court becomes a court of first instance, a circumstance that the principle of subsidiarity was designed to avoid. 

Therefore, while ratification without transposition in domestic law does not formally breach the Convention, the spirit of subsidiarity is put into very serious question.

Prejudice

Without being enabled to take their case before the Maltese courts, persons who seek the protection of Protocol No. 12 in their claim on discrimination by the public authorities are left without no option other than to pursue their claim before the ECtHR.  Litigation of this nature is lengthy, complex, and costly.

Commitment

In systems that value the rule of law, ratification of an international human-rights instrument requires from a State a legal commitment to respect and enforce the provisions of that instrument, including domestic legislative implementation and guarantees.

Conclusion

The Office of the Ombudsman as a constitutionally protected oversight institution plays an important role in encouraging compliance with international human-rights standards. The ECHR functions through a carefully constructed sharing of responsibility, including where the domestic courts and the ECtHR are concerned.

At the heart of that responsibility is the principle of subsidiarity in the sense that domestic institutions should provide the primary protection of human rights.  Ratification of Protocol No. 12 by Malta without its incorporation in the laws of Malta is a legal set-back. 

Incorporating Protocol No. 12 into domestic law strengthens the protection of equality, enhances the role of national courts, and reaffirms the central principle that human rights should be secured first and foremost at home.

The matter should therefore be addressed, remedied and resolved without further unnecessary delay.