Former judge at the European Court of Human Rights Giovanni Bonello has denounced the double standards of the government’s lawyer in lawsuits escalated to the European Court of Human Rights (ECHR) in an article published in the legal journal ‘Id-Dritt’.
He wrote that “these antics, unbecoming of the most desperate litigant, become repugnant when they tarnish what we yearn to see as the majesty of the State”.
In one case, the government appealed against €5,000 in damages awarded in the lower constitutional court, managing to get the amount down to €2,000 in the higher constitutional court, only to change tack when the cause was taken to ECHR, and willingly offer to pay the victim – former newspaper editor Joseph Calleja – €7,000 as “just” settlement. That’s more than the amount appealed against in Malta.
“This is totally unprincipled,” Bonello wrote. “What was unreasonable to the State in the State’s own domestic courts, suddenly and by abracadabra becomes reasonable to that same State in an international court”.
These cases were handled until 10 months ago by the Civil, Administrative and Constitutional Law Unit within the Attorney General’s office, and later by the State Advocate.
The unit within the Attorney General’s office was headed by Victoria Buttigieg, who had been drafting and filing all submissions and pleadings of these lawsuits at the ECHR since 2012. She then retained responsibility for such cases when she became State Advocate last December until her appointment as Attorney General last September.
Buttigieg’s appointment to the role of chief prosecutor caused “perplexity” among criminal lawyers, mostly due to her lack of experience in the criminal justice system. The Chamber of Advocates said at the time it was holding back from further measures to allow her to prove herself “before we come to any conclusions – it would be premature to take this further than simply express our perplexity”.
The Attorney General has since led the charge against former Chief of Staff Keith Schembri by a court application that led to his assets being frozen, an action approvingly acknowledged by legal sources.
Chris Soler, a longtime legal advisor of the University of Malta, has been appointed as the new State Advocate.
The article by Bonello, an influential former judge who served at the ECHR for 12 years prior to his retirement, draws attention to the “antics” increasingly adopted in recent years during Buttigieg’s tenure of the constitutional law unit at the Attorney General’s office.
The unit’s lawyers under Buttigieg’s supervision repeatedly defended against any claim of human rights breaches in the Maltese constitutional courts. But when the grievance was taken to the ECHR, Buttigieg conceded and made offers of monetary damages to the victims.
Bonello criticises the Maltese constitutional court and the government’s legal representative in equal measure.
He denounces the court’s tendency to rule against victims or award derisory damages as “spineless timidity” and “an irresponsible or deliberate misunderstanding of the very basics of human rights law”.
Then he brands the State advocate’s about-face in the Strasbourg court as “the hallmarks of shifting morality, the imposture of those who substitute convenience to ethics”.
Beginning his article by discussing his research that found that the Maltese government loses 90% of all cases on merit at the ECHR (excluding those lost on a technicality), he points out that this rate of loss is the highest among the 47 countries that are members of the Council of Europe and under the jurisdiction of the ECHR.
Bonello stresses that this percentage is higher even than Turkey and Russia.
He mocks this as an “unlovely European record to be proud of and to cultivate jealously – that of having the highest per-capita percentage of its human-rights judgements which are examined on the merits, rubbished over and over again by the supreme court of Europe”.
He then mentions a cluster of five cases resolved on 21 February 2019 after the Attorney General’s office, in cases handled by Buttigieg at the ECHR, offered out-of-court payments rather than fight in court.
One of those cases had been brought by the only journalist ever sentenced to imprisonment in Malta, Joseph Calleja. He had been the editor of the satirical newspaper ‘In-Niggiesa’ which, in 1973, reported on rumours that a Gozitan woman was spirited to a job in Malta after she had become pregnant through an affair with a government Minister. He was prosecuted for criminal defamation and pornography and sentenced to three months’ imprisonment.
Years later, after the ECHR in 2013 ruled that the imprisonment of a journalist is invariably a breach of freedom of expression, an emboldened Calleja filed for damages. The lower constitutional court awarded him €5,000.
On appeal, the Constitutional Court reconfirmed the findings of the lower court but reduced damages to €2,000 and ordered Calleja to bear a portion of the legal fees – the catch was that these legal costs amounted to more than double the sum he had won in damages.
He took his case to the ECHR and, instead of fighting the lawsuit, Buttigieg drafted what’s called a “unilateral declaration” offering to pay Calleja €7,000 as “just satisfaction”.
This offer, Bonello wrote, was meant “to avoid the humiliation of another judgement by the ECHR rubbishing what we, optimistically and for want of a better word, call the Maltese courts of justice.”
Wrapping up the case, the ECHR accepted the €7,000 settlement offer on top of the €2,000 that had already been awarded by the Maltese Constitutional Court.
In a more recent case probed by The Shift, resolved on 23 January, a Nigerian national who lives in Malta, Joseph Feilazoo, had been apprehended at the airport and subjected to an X-ray, which yielded a capsule with drugs in his intestines.
His lawyer, Larry Formosa, filed a constitutional suit mainly on the basis that he had been denied the right to consult a lawyer prior to being subjected to the x-ray.
Formosa told The Shift that the whole point of the constitutional case was based on the premise that this could have been a case of racial profiling – that Feilazoo had been picked up randomly because he is African.
“If he had been given access to a lawyer,” Formosa elaborated, “the lawyer would have advised him to withhold consent for the x-ray, and the police would have had to apply to the duty magistrate for a decree authorising the x-ray. The magistrate would only have acceded to the police’s request if they had manifest reasonable suspicion, which we feel they didn’t have even though they had said they had ‘information’.”
Two Maltese courts dismissed the Feilazoo’s pleadings of breach of his right to a fair trial, and he took the case to the ECHR.
At that point, despite her office’s pleadings in the Maltese courts that the human rights of Feilazoo had not been breached, Buttigieg drafted a “unilateral declaration” conceding “violation” of the man’s right to a fair trial, and offering “to pay the applicant [Feilazoo] the sum [damages] of €2,500.”
The ECHR accepted this settlement because the Maltese government had conceded, and because the sum offered was consistent with damages awarded in similar cases.