Human rights not applicable to all

Am I the only one confused by the recent European Court of Human Rights (ECHR) judgement on fireworks let off near people’s homes?  Does its ruling mean that the granting of permits for firework displays close to people’s homes did not breach human rights? Or is it just in the particular Zammit Maempel case that human rights have not been violated? I would assume the latter. However, the ruling can still be cited in any future similar dispute. Besides, it also applies to anyone living in a zone with a hundred or less residents. OK, if the family knew about the proximity of the fireworks displays when they bought their home that might be a valid argument, but surely the other reasons given by the court for rejecting the complaint are not that reasonable. On the one hand, it claimed that the complaint was admissible because “their (the complainants) right to respect for their private lives and home had been disturbed sufficiently”, and there is not doubt that the latter was justified. It then underrated the damage done by the hoisting of petards near people’s homes, on the basis that only a few residents live in that particular zone. Although the court declared that “ the physical and psychological state of the applicants had been affected”, it added “even if only temporarily” since, it said, the noise produced by the fireworks had lasted only for “a limited time”. Here, in Malta, we live through a ‘blitz’ situation every summer. Even if the noise only lasts “for a limited time” (sometimes up to an hour or more) in one location, why should anyone have to endure “physical and psychological” negative effects? The truth is that the “limited time” argument does not wash in Malta. As soon as one bombardment stops another in a different locality kicks off. It is precisely our size (ECHR found that the distinction between inhabited and uninhabited areas had to keep in mind Malta’s small size and densely populated nature) that makes the noise unbearable. We just can’t get away from it wherever we live on this tiny rock. It must be absolute hell for the unfortunate people who live close to any hoisting. Yet, the ECHR agreed with the Maltese Law that defines an inhabited area as being a place where more than 100 people live. It ruled that the family’s claims of discrimination were manifestly ill founded. It said that given Malta’s geographical limitations, the distances under discussion and the government’s efforts to minimise inconvenience, any difference in treatment between those living in “inhabited” and “uninhabited” areas was objectively justified. Funny, I thought that “uninhabited” meant no one lived there, as per the dictionary “without human habitation”. Is the law being an ass here? The issue was over the interpretation of the law on the safe distance for the firing of petards from an inhabited area. Does the ECHR think it is dispensing justice when it confirms that the people who live in a zone that has 100, or less, residing there have not got the same right to human rights as those living in a 100+ zone? The latter is a thorny subject, which has been under dispute for years. After complaints to the Commissioner of Police in the mid nineties got no results, an appeal was made to the Ombudsman. In 1999, he concluded that the Commissioner of Police should seek expert advice on the subject. A group of experts entrusted with looking into the situation recommended that the fields used for the firework displays should be classified as a restricted area under the applicable regulations. That recommendation was not taken up. Interestingly, in its recent (2011) judgement the ECHR said that since the Commissioner of Police had not followed the experts’ advice, the Zammit Maempels could have challenged “his/her” (does a female police commissioner exist anywhere yet?) decision in ordinary civil court proceedings; therefore, an avenue for seeking redress at national level had been open to them. Since they had instead undertaken constitutional redress proceedings, it could not be said that they had not had an opportunity to make their views heard. The fact that the outcome of those proceedings had not been favourable to them was not sufficient to establish that they had not had access to the decision-making process, ruled the ECHR last week. In 2001, the Ombudsman had criticised the issuing of licences, in particular as regards the applicable distances and type of fireworks. Yet, the Commissioner of Police has continued to issue permits for two feasts a year in the disputed area ever since. Which raises another important issue, namely, is there a point to having an Ombudsman if everybody ignores his (it’s pointless having his/her) recommendations? Is that organisation just another pen pusher’s den? There are plans to make that office financially autonomous. But will that turn the poodle into a Doberman? Having got nowhere, in 2005, the applicants instituted constitutional redress proceedings against the Police Commissioner and the Attorney General in the Civil Court in its constitutional jurisdiction. In 2009, Mr Justice Raymond C Pace ruled that the definition of what constituted an inhabited area did not bring about a balance between interference by a public authority and what was necessary to protect the privacy of an individual. He found that the legal definition brought about discrimination between different groups of persons. He also noted that the Ombudsman had concluded that the Police Commissioner should not have issued the licenses, based on the findings of experts on the matter. He ruled that the definition of “inhabited area” in the law governing the granting of permits for the letting off of fireworks was in violation of a family’s fundamental human right to privacy and to freedom from discrimination. However, that decision was reversed on appeal. That court ruled that the inconvenience suffered by the family was self-inflicted, as it had moved to an area where fireworks had been let off for over 70 years. While the noise and peril from the fireworks had caused the applicants some “inconvenience”, the relevant regulations had been applied correctly and had struck a fair balance between the applicants’ rights and the interest of the community as a whole, said the Constitutional Court. The ECHR agreed with the latter. It noted that although “the noise levels could have impaired the hearing of at least one of the applicants, there had not been a real and immediate risk to the applicants’ life or personal integrity”. So the impaired hearing of at least one of the applicants was not a “real risk” to personal integrity? Firstly, it does not look like the ECHR was aware of the levels of noise, especially those produced by the petards. I don’t know whether any data was presented on that score. But I do know that they cause discomfort, and sometimes worse, to quite a chunk of the population who live miles away from where the fireworks are let off. So one can only imagine the level of noise endured by those living close by. So how does that explain “no immediate risk to personal integrity”? One of the reasons the ECHR gave was that it was accepted that firework displays are one of the highlights of village feasts, "which undeniably generated an amount of income and which, therefore, aided the general economy". So there we have it. It is all about the money. As for citing “religious heritage” to uphold their ruling, it is obvious that the ECHR was not aware that the Church in Malta set up an Environmental Commission, which strongly criticised the overuse and pique involved in the fireworks industry and published leaflets demonstrating the negative side of fireworks. The Court cited that the government had been aware of the dangers of fireworks and had put in place a system whereby people and properties were protected to “a certain degree”. Thus, the issuing of permits for firework displays, as well as for transportation and uploading of fireworks, had been provided for in specific regulations. Furthermore, police inspectors and fire fighters had monitored the letting off of fireworks. Insurance covering the activity had also been mandatory, it said. The fact that insurance cover is now mandatory is further proof of the risks involved. Of course the amount of deaths and injuries caused by explosions at fireworks shacks, one cannot really call them factories, was what made that move necessary. Lives of the people not involved in the making of fireworks may not be directly threatened, but a large chunk of the population’s lives are made unnecessarily stressful by the pervasive noise pollution the Maltese have to endure all through the summer months. But of course, unfortunately, this was not what the ECHR was presented with. The fireworks industry has an impressive and powerful lobby and challenging it requires much more than the endeavours of one family. Article published in the Malta independent on Sunday27 November 2011