The European Convention for the Protection of Human Rights and Fundamental Freedoms is a multinational treaty whereby member states of the Council of Europe declare to assure fundamental civil and political rights, not just to citizens but anyone within their respective jurisdiction. Both cases mentioned in this assignment, have complained about breaches of Article 5 and in both cases the issue of non-exhaustion of domestic remedies was raised.  

Article 5 of the Convention promulgates that “everyone has the right to liberty and security of person” and proceeds to give exceptions for when that liberty can be lawfully deprived. The following articles then state all the rights said person has. 

The first sub article of article 35, there is clearly stated that for the court to deal with the matter at hand, “all domestic remedies must have been exhausted”. This is based on an international law maxim associated with diplomatic protection, mainly to respect the respondent state and its legislation. Furthermore, since the European Court of Human Rights is considered to be a supranational court, as it would be addressing complaints on a first instance. In the case of human rights law, this principle of exhaustion of domestic remedies, is more so based on the principle that states should be at the forefront of the protection of the Convention’s rights. But this can sometimes prove to be almost impossible or add to the hardship’s of the applicants and therefore, the courts accepts applications that have not went through all the state’s authorities but requires them to prove that local remedies have in fact been exhausted due to the circumstances. 

But this leads one to question what is a remedy and how does the court define it? The court gives two requirements for a remedy; availability and effectiveness. It is considered available if it can be enquired into by the applicant without any complications and obstructions. It also must have a degree of immediacy and certainty. On the other hand, an effective remedy must exist within the domestic legislation and offer a fair chance of success. If the court views that at national level, the applicant had almost no chance to success mainly based on case law and national legislation, it will declare that Article 35 does not prevent them from asserting their rights. It is also important to note, that if more than one potentially effective remedy is accessible, the applicant is only required to use one and the applicant himself decides which remedy is the most appropriate based on his circumstances. 

In the case of Louled Massoud v. Malta, the issue of non-exhaustion of domestic remedies was raised through Article 3 of the Convention as the applicant complained that he had been subject to degrading treatment during the time he spent in detention. The court observed that the applicant had failed to begin legal proceedings, raising said complaint before the Civil Court (First Hall), and if necessary later, to present an appeal before the Constitutional Court. Therefore since domestic remedies were not exhausted, this resulted in the court rejecting the complaint based on Article 35 sub article 1 and 4. 

The applicant then proceeded to complain that the Maltese legal system had breached Article 5(4) of the Convention by not providing him with an efficient and prompt remedy. The government objected to this claim as it claimed that the applicant did not exhaust any domestic remedies and the applicant responded, claiming that no domestic remedy that was available met the prerequisites of Article 5(4). The court considered that the objection raised by the applicant is very much linked to the substance of his complaint and its examination should be joined to the merits. It was evident that the parties were not agreeing as to the effectiveness and speediness of the remedies involved and therefore the court had to evaluate each remedy on the basis of information given by both parties. Three remedies were presented; Article 409A, Art 25 and a  Constitutional hearing, neither of which were considered to be an effective remedy in regard to Article 5(4). The court noted that the applicant stated that Article 409A did not examine the lawfulness in the light of the prerequisites of the convention. The domestic courts themselves held that: “it is not within the competence of the Court of Magistrates or the Criminal Court to examine whether, beyond the fact that there is a clear law authorising continued detention, there are other circumstances which could render it illegal, such as an incompatibility with the rights granted by the Constitution or the Convention.” The court considered that Article 25A of the Immigration Act is restricted in terms of the limited possibility of release from custody as the authorities weren’t sure whether the applicant had previously destroyed his identification documents or used fraudulent ones, apart from this the court took into consideration the time period taken for the board to reach a decision. Finally, the court rendered that a constitutional hearing would not ensure a speedy review in regard to Article 5(4). These considerations were enough for the court to decide that the applicant, had no effective and speedy remedy at a domestic law level, and the government’s objections founded on the non-exhaustion of domestic remedies is to be rejected. Therefore the applicant’s claim for the breach of Article 5(4) is verified.