Fundamental human rights are rights which are inherent to all persons regardless of status, and in Malta these are enforceable through the Constitution of Malta (the “Constitution”) and the European Convention of Human Rights (the “Convention”), which Malta is a signatory of. While, Maltese Courts shall have jurisdiction over provisions emanating from the Constitution, the European Court of Human Rights (the “ECHR”) shall have jurisdiction over the provisions emanating from the Convention and over any act which does not guarantee the basic civil and political rights to all citizens of signatory countries.
The jurisdiction of the ECHR focuses on interstate and individual applications, after having exhausted all domestic remedies. A person who is not satisfied with a domestic remedy in cases of infringement of fundamental freedoms has four months to lodge an application with the ECHR. The format and contents of the application are regulated to minimise abuse of the re-appeal process and ensure the efficiency of the judicial system.
In instances where domestic law is inconsistent with the Convention, the Convention shall prevail and declare the inconsistency to be void and therefore, the Convention and the judgements of the ECHR shall have supremacy over domestic law and judgements.
This article shall focus on the right of property and the right to the protection of privacy of the home and other property.
A person's possession over a property, including any interest or right over it, shall not be compulsorily taken, unless such action is authorised by applicable law that provides for the taking or acquisition of property. Nonetheless, in the case of such supervening laws, this fundamental right owed to a person offers the following safeguards to ensure enforcement of the right over a person’s property:
This right shall be the main defence for expropriation and requisition. Requisition is no longer a concept found within the Laws of Malta. The ECHR throughout its judgements in relation to expropriation cases, continuously applies the notion of balance between the general interest of the public – which shall be the reason for expropriation, and the individual’s human rights.
The Court throughout the years has recognised that the Parliament shall be able to determine the criteria for quantifying compensation, however, the Court has recognised its responsibility to ensure that the quantified compensation is adequate.
The right of privacy of home and over other property of a person shall safeguard a person’s right against unwarranted searches of their person, property, or entry by others on his premises. This right shall only be waived when the person gives his consent, by way of parental discipline, or by applicable provisions which inherently provide sufficient reason to waive such right.
The Court, by virtue of its judgements, recognised that whilst the law may provide authorities, such as the Housing Authority, with the power to enter into one’s property, that authority shall exercise its powers without infringing the rights of a person.
The right to respect for private and family life is a fundamental right which is not expressly guaranteed by our Constitution. However, it provides for its enforcement and nonetheless, is codified within the Convention.
The protection of fundamental human rights, particularly property and privacy, is central to both Maltese and European legal systems. The Constitution of Malta and the European Convention on Human Rights provide safeguards against infringements, with the European Court of Human Rights ensuring fairness when domestic remedies fall short. Balancing public interest with individual rights remains key, emphasising adequate compensation, judicial oversight, and respect for personal spaces. The Constitution commits to these principles and upholds the rule of law whilst aligning with international standards.
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Author: Dr Neil Gauci