Protecting non-discrimination as a human right: Starting from home before the Maltese Courts

Protecting non-discrimination as a human right: Starting from home before the Maltese Courts

Published October 01, 2026

by the Parliamentary Ombudsman, Judge Joseph Zammit McKeon

Introduction 

The European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) is built upon a careful distribution of responsibilities between the authorities of Contracting States and the supervision procedures embodied in the Convention.  The mandate of the European Court of Human Rights (“ECtHR”) is not to function as the primary judicial body which decides on alleged breaches to the human rights and freedoms that enjoy the protection of the Convention and its Protocols, but as a supervisory judicial body that ensures compliance by Contracting States. 

Protocol No. 12

Protocol No. 12 establishes a general prohibition of discrimination.  Malta signed and ratified the Protocol as an international treaty.  Despite that the Protocol came into force on the 1 April 2016, it is still not part of Maltese law, despite the lapse of ten years and a half.

While the Convention itself was incorporated into Maltese law by means of the European Convention Act (Chapter 319 of the Laws of Malta), Protocol No. 12 is the only Protocol to the Convention, which Malta signed and ratified, and which is still not part of Maltese domestic law.  

Consequence

The practical consequence of this fact is that if a person seeks protection against discrimination as a standalone right protection by Protocol No. 12, that person cannot seek redress before the Maltese Courts but have necessarily has to apply for protection directly before the ECHR.  This matter was highlighted 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.  

Importance

This is an important issue that requires legislative intervention without further delay.

Protocol No. 12 extends the prohibition of discrimination beyond the rights guaranteed by the Convention, establishing a free-standing right against discrimination. As far as Malta is concerned, to date this right is enforceable only before the ECtHR not before Maltese Courts.  A person seeking redress has no other alternative.  This is indeed a paradox : a human right which Malta has acknowledged, and which can be enforced only in Strasbourg.

Subsidiarity

Subsidiarity is often described as the hallmark of the Convention as it reflects the understanding that national authorities are better placed to protect and secure rights because of their proximity to the evidence and social context. Subsidiarity is not just a matter of legal doctrine but part and parcel of the architecture of the Convention.  The ECtHR has consistently expressed itself in the sense that it is does not substitute its own assessment of facts and law to that of national courts, save where Convention rights are engaged.

The requirement for a person to exhaust domestic remedies before proceeding to Strasbourg, enshrined in Article 35 of the Convention, gives substance to the principle of subsidiarity which ensures that States have the opportunity to decide on alleged human rights violations and give redress before supra-national judicial intervention occurs. The requirement is not a technical threshold but reflects situations of fact.  National courts are closer to the facts on the ground.  They can provide timely and effective remedies because they are well aware of the circumstances at home.  The Convention has to rely on national authorities to secure rights effectively.  This implies that national authorities have to ensure that domestic remedies are both available and effective. Seeking redress directly from the ECtHR should be the exceptional course of action.

Caseload

Despite the objective difficulties that persons encounter when they access Maltese Courts, in particular the perennial issue of justice within a reasonable time, the matter is not critical in cases that fall within the jurisdiction of the First Hall Civil Court (Constitutional Jurisdiction) and the Constitutional Court. However that is not the case where the ECtHR is concerned.  The latest available data demonstrate the scale of the work of Court.

Figures that result from the 2025 Annual Report of the Court show that in 2025:

• 31,800 applications were allocated to the Court;
• 53,450 were pending before the Court, including cases coming from previous years;
• 7,011 judgements were given by the Court; and
• 31,562 were declared inadmissible.

Although the figure of 53,450 of pending cases is high, the total is less than in previous years: 

• 2023: 68,450; and
• 2024: 60,350

The same trend relates to the cases decided or declared inadmissible in 2023 (31,000) and 2024 (33,942). 

These figures reveal structural features.

First, the overwhelming majority of applications are not resolved through detailed judgments. In fact, they are disposed of by single-judge formations, often through summary decisions on admissibility. The number of fully reasoned judgements remains comparatively small, reflecting the role of the Court as a standard-setting body.

Secondly, a significant proportion of the caseload consists of repetitive cases arising from systemic deficiencies within certain States. In general terms, these cases do not raise novel legal questions but rather reflect persistent failures to implement established Convention standards.

Thirdly, the Court has to manage thousands of applications which require a considerable degree of procedural filtering.  The Court operates with limited resources in relation to its caseload.  The Court has 46 judges (one from each Contracting State in personal capacity and not in representation of a Contracting State) with the support of 650 “jurists” who are highly specialised legal professionals who analyse incoming applications, prepare case files and legal summaries, draft decisions and judgements for consideration by the judges of the Court, conduct comparative legal research and assist in admissibility filtering and merits analysis.  

From a practical perspective, proceedings before the ECtHR are lengthy and complex. Applicants must navigate procedural requirements and may have to wait years for a judgement that is final and conclusive.  Human rights protection must begin at home. 
Wrong

Justice perceived as distant or inaccessible locally in wrong. A procedure where persons are obliged to seek justice abroad risks weakening domestic institutions.  If our Courts have no say in the protection of persons against discrimination as a human right embodied in Protocol No. 12, then apart from being deprived of the opportunity to enrich our case- law with domestic judgements, there is a risk of inequality being artificially created because not all persons have the resources or the knowledge to pursue effectively and well a case before the ECtHR. 

None of this diminishes the importance of the ECtHR.  Its role remains is indispensable as it provides authoritative interpretation of the Convention, acts as a safety net where domestic systems fail, and ensures the application of uniform standards across Contracting States.

Conclusion

The above requires objective consideration, decisive action and answers: to date, why has the jurisdiction of the Maltese Courts in matters arising from Protocol No. 12 been ruled out completely and any redress possible to be sought only from the ECtHR? Why is Protocol No. 12 being treated procedurally different when compared to other rights protected by the Convention?  Answers are rightfully due.