The 1964 Constitution of Malta is the country's supreme law.Art. 6, 1964 Constitution of Malta.The Constitution explicitly protects fundamental rights and freedoms, including the right to life:
(1) No person shall intentionally be deprived of his life save in execution of the sentence of a court in respect of a criminal offence under the law of Malta of which he has been convicted.
(2) Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this article if he dies as the result of the use of force to such extent as is reasonably justifiable in the circumstances of the case -
(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission by that person of a criminal offence,
or if he dies as the result of a lawful act of war.Art. 33, 1964 Constitution of Malta.
According to Article 36(1) of the Constitution: "No person shall be subjected to inhuman or degrading punishment or treatment."
Under Article 42(1): "Except with his own consent or by way of parental discipline no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association..."
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision -
(a) that is reasonably required -
(i) in the interests of defence, public safety, public order, public morality or decency, or public health; or
(ii) for the purpose of protecting the rights or freedoms of other persons...
and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.
(3) For the purposes of this article, any provision in any law prohibiting the holding of public meetings or demonstrations in any one or more particular cities, towns, suburbs or villages shall be held to be a provision which is not reasonably justifiable in a democratic society.
The use of force by the police is not specifically regulated by the Constitution although police powers are addressed in the Code of Police Laws that dates back to 1856 and which is annexed to the Constitution.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||State Party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1950 European Convention on Human Rights||State Party|
Police Use of Force
Police use of force is regulated by Part V of the 2017 Police Act. Article 76 stipulates that the use of force "is a remedy of last resort and shall only be used for the duration that is strictly necessary when it is evident that all other remedies would be of no avail." Any Court or tribunal that is required to assess the reasonableness of a use of force must consider "the circumstances prevailing at the time when force was used".Art. 77, 2017 Police Act.
In exceptional circumstances the Police Force "may, in the execution of its duties, use firearms and other offensive weapons or materials".Art. 78(1), 2017 Police Act.Such exceptional circumstances are when their use
becomes inevitable to preserve the life of a police officer or of others, or to avert an imminent danger of widespread violence.Art. 78(2), 2017 Police Act.
This latter criterion--"to avert an imminent danger of widespread violence"--is potentially very broad and does not conform to international law and standards. It could mean use of firearms to disperse what police officers deem to be a potentially violent assembly.
In supporting the implementation of the Police Act, the Maltese Police Code of Ethics states that no-one is above the law and that the dignity of a human being is to be respected at all times and circumstances. With respect to the principles on the use of force, the Code declares that:
The level of permissible force and the mode of how this should be applied, varies according to the nature and gravity of the situation that the police may find itself in.
When no other alternative is available except to use force, the law states -
- The force applied must be moderate and proportional to the circumstances of each particular case;
- No extra force other than that which is necessary must be used in order to attain that legitimate aim for which force was used.
There is an Independent Police Complaints Board in Malta, chaired by a judge.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2014 Concluding Observations on Malta, the Human Rights Committee expressed its concern about allegations of ill-treatment and excessive use of force by soldiers and police officers at detention centres for migrants, which in some cases included the use of tear gas and rubber bullets.Human Rights Committee, Concluding Observations on Malta, UN doc. CCPR/C/MLT/CO/2, 21 November 2014, para. 14.The Committee called on Malta to adopt "effective measures to prevent excessive use of force and ill-treatment by law enforcement officials and members of the security forces" and to
ensure that allegations of torture and/or ill-treatment are effectively investigated, perpetrators prosecuted and, if convicted, punished with sanctions commensurate with the seriousness of the crime, and victims should be adequately compensated. The State party should promptly investigate cases of death in custody, prosecute those responsible and provide appropriate compensation to families of victims.Human Rights Committee, Concluding Observations on Malta, UN doc. CCPR/C/MLT/CO/2, 21 November 2014, para. 14.
To date, no case has been adjudicated on police use of force by the European Court of Human Rights against Malta (as at July 2018).
In March 2018, two men were acquitted of assaulting police officers after the magistrate's court ruled that the officers had used excessive force.