Study-Unit Description

Study-Unit Description


CODE PBL5028

 
TITLE Constitutional and Human Rights Procedure

 
LEVEL 05 - Postgraduate Modular Diploma or Degree Course

 
ECTS CREDITS 5

 
DEPARTMENT Public Law

 
DESCRIPTION Part 1:

The first part of this study-unit is intended to acquaint the students with specific procedural difficulties which have, from a historical perspective, hampered the way forward for aggrieved persons claiming to have suffered violations of their constitutional rights in particular of their fundamental rights. Reference is made to important judgements given by the Civil Court First Hall and the Constitutional Court of Malta, particularly preliminary judgements dealing with specific procedural issues.

The students are trained to tackle such issues as:
- Who may file a constitutional or human rights application?
- Who is the proper defendant?

The study-unit seeks to familiarise students with such problems as:
- The victim status of companies and organisations;
- The application of section 181B of the Code of Organisation and Civil Procedure regarding proper defendants in human rights actions;
- The impact of section 175 of the Code of Organisation and Civil Procedure regarding corrections / substitution of defendants;
- Joinder in the action.

Reference is also made to human rights actions based on alleged violations of the Constitution of Malta and to applications before the European Court of Human Rights in Strasbourg regarding alleged violations of the European Convention.

Part 2:

The second part of this study-unit seeks to impart to students knowledge on the importance of the ‘horizontal effect’ of the European Convention on Human Rights when private individuals suffer violations of their fundamental rights as a result of the State’s passive attitude towards wrongful conduct by other private individuals.

Reference is made to cases that deal with this important issue and the notion of State Action is discussed at length.

Part 3:

The third part concerns the doctrine of positive obligations elaborated by the European Court of Human Rights in Strasbourg and how these have enhanced the level of protection for the individual.

Part 4:

The fourth part will deal with the application of the general notions of procedure applicable to Constitutional court cases in general and the specific requirements of Article 46 of the Constitutional and the actio personalis and the actio popularis where constitutional remedies are concerned.

Study-unit Aims:

- The study-unit will provide the theoretical knowledge necessary to understand the notions on Human Rights as obtaining through jurisprudence;
- An in-depth analysis of the provisions contained in article 46 of the Constitution in the light of the Court Practice and Procedure rules 1993;
- To prepare students to analyse the relevant jurisprudential trends emanating from the Constitutional Court practice in various case studies involving Constitutional Court practice;
- The detailed in-depth study of a pending or decided Constitutional Court case wherein students will participate actively in the discussion;
- Particular attention will also be given to actions involving Human Rights remedies.

Learning Outcomes:

1. Knowledge & Understanding:

By the end of the study-unit the student will:
- Be conversant with the practical difficulties which arise in the procedures of the Constitutional Court;
- Have the knowledge of the historical development of the procedures before the Civil Court in its constitutional jurisdiction and the Constitutional Court;
- Be able to understand the inter-relationship between substantive law, procedural law and Court practice of the courts having constitutional jurisdiction;
- Be able to apply the above skills to the more specialised field of Human Rights actions and their inter-relationship with the procedures of the European Court of Human Rights arising from both the European Convention Act and the European Convention of Human Rights.

2. Skills:

By the end of the study-unit the student will be:
- Able to apply the theoretical notions studied particularly at the undergraduate level involving the substantive rights protected by the Constitution of Malta within the perspective of the types of actions available at the constitutional level;
- Able to read and understand constitutional court judgements, analyse appreciate, and adapt to the practical requirements of Advocacy before the First Hall of the Civil Court in its constitutional jurisdiction and the Constitutional Court of Malta;
- More competent as Advocates in handling Human Rights actions through the proper understanding of the procedures and practices of theses courts.

Main Text/s and any supplementary readings:

- G Mifsud Bonnici, Constitutional Procedure Relative to Fundamental Rights and Freedoms, Mireva Publishers 2009.
- The Constitution of Malta.
- The Code of Organization & Civil Procedure (Chapter 12 of the Laws of Malta).
- Kollezzjoni ta' Decizjonijiet tal-Qrati Superjuri ta' Malta.
- Harris, O'Boyle & Warbrick, Law of the European Convention on Human Rights, Oxford University Press 2009.
- Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights, Oxford University Press 2012.
- P. van Dijk and G.J.N. van Hoof, Theory and Practice of the European Court of Human Rights, Intersentia Publishers, 2006.
- The Maltese Legal System Volume II :Constitutional and Human Rights law Part A(Malta University Press) (2015) by Professor David J. Attard.
- A Commentary on the Constitution of Malta (2016)(Kite) by Dr. Tonio Borg.

 
STUDY-UNIT TYPE Lecture

 
METHOD OF ASSESSMENT
Assessment Component/s Assessment Due Resit Availability Weighting
Assignment SEM2 Yes 100%

 
LECTURER/S Tonio Borg

 
The University makes every effort to ensure that the published Courses Plans, Programmes of Study and Study-Unit information are complete and up-to-date at the time of publication. The University reserves the right to make changes in case errors are detected after publication.
The availability of optional units may be subject to timetabling constraints.
Units not attracting a sufficient number of registrations may be withdrawn without notice.
It should be noted that all the information in the study-unit description above applies to the academic year 2018/9, if study-unit is available during this academic year, and may be subject to change in subsequent years.

https://www.um.edu.mt/course/studyunit