Malta yet to incorporate key anti-discrimination protocol into law, a decade after ratification

Ten years after Malta brought Protocol No. 12 to the European Convention on Human Rights into force at an international level, it “is still not part of the laws of Malta,” according to a statement by the Ombudsman raising concerns about people’s ability to seek justice in discrimination cases.

The protocol, which took effect for Malta on 1 April 2016, sets out “a general prohibition of discrimination and its foundation as an independent right.” In simple terms, it offers broader protection than existing rules by banning unfair treatment in a wide range of situations, not just in relation to specific rights already covered by the Convention.

However, because it has never been added to Maltese law, local courts cannot apply it. This has been confirmed by the Constitutional Court in recent cases, including Jonathan Ferris v. Commissioner of Police (2026) and Mark Calleja v. Minister of Education and Employment (2025), the Ombudsman pointed out.

The situation has been described as “a serious shortcoming that remains unaddressed till this very day,” despite repeated calls for action by the Office of the Ombudsman.

Although Malta is bound by the protocol internationally and falls under the oversight of the European Court of Human Rights, people in Malta cannot rely on it in local courts. Instead, anyone claiming discrimination under these rules would have to take their case directly to Strasbourg, described as “lengthy, complex, and costly.”

This has raised concerns about how the system is supposed to work. Normally, national courts are meant to deal with human rights cases first, with the Strasbourg court stepping in only if needed. But because Protocol No. 12 is not part of Maltese law, people are effectively being forced to skip the Maltese system.

The warning is that this creates a mismatch between what Malta has agreed to internationally and what is actually available in practice. As the statement puts it, “When a State ratifies a Convention protocol but does not transpose [it] into its domestic corpus juris, a structural tension emerges between international obligations and domestic enforceability.” Put simply, the right exists on paper, but not in everyday legal use.

“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,” the Ombudsman adds.

There are also wider effects. Without local court decisions, the Strasbourg court does not benefit from the views of Maltese Judges. At the same time, sending cases straight to the European Court of Human Rights adds pressure to a system already dealing with many pending cases.

“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,” the Ombudsman stated.

While ratification was described as “a meaningful step forward,” the failure to bring the protocol into Maltese law has been called a “legal setback.” People are still unable to rely on it at home, leaving a gap in protection against discrimination.

“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 statement adds, concluding that “the matter should therefore be addressed, remedied and resolved without further unnecessary delay.”