An overhaul of the criminal court procedures should be considered in the long term, Chief Justice Emeritus Vincent De Gaetano told The Malta Independent on Sunday.

The former Chief Justice has seen the evolution of Malta’s justice system, having had a long legal career which began in the Office of the Attorney General in 1979, before he became a judge in 1994. In August 2002, then Prime Minister Eddie Fenech Adami called him up, asking to speak to him at his summer residence in Buġibba.

“I remember going there, and he told me point blank that he had the Cabinet’s approval to ask me to become Chief Justice. After around 20 minutes of trying to persuade him to appoint someone else, pointing out that I was not the senior judge, that I had no experience in commercial law, and that I was quite happy sitting on my own in the Criminal Court, he eventually said:  ‘Well, okay, if you don't think you can accept, then I may have to look for a chief justice from outside the present pool of judges’. That pulled the carpet straight from under my feet, so I accepted.”

He served as Chief Justice until 2010, when he was elected by the Parliamentary Assembly of the Council of Europe as the judge in respect of Malta on the European Court of Human Rights. His term ended in 2019. In 2021 he was appointed to his current role as Education Commissioner within the Ombudsman’s office.

During an interview, Judge De Gaetano, when asked about Malta’s criminal justice system, said that in the case of the more serious crimes, committal proceedings (otherwise known as compilations of evidence) take too long and are conducted in “dribs and drabs”.

He explained that once a compilation of evidence is concluded, with the magistrate deciding that there are sufficient grounds for an indictment to be filed, the case then should in principle either move forward to trial by jury with the filing of a Bill of Indictment in the Criminal Court, or with the concurrence of the accused, be sent back to the magistrate who handled the compilation for him or her to decide the case on the merits. Unfortunately what generally follows is an interminable series of referrals back and forth from the AG to the magistrate to “collect further evidence,” he said.  The problem, he said, is that if a case takes too long, dragging on for, say, four years, “you would, as a rule, already have the red card for unreasonable delay” by the standards of the European Court of Human Rights. This time may vary depending on, say, the exceptional complexity of the case or deliberate delays caused by the accused. That court considers the compilation stage and the subsequent trial by jury or trial by a magistrate as one level of jurisdiction, the second level being if the case goes to the Court of Criminal Appeal."

Simply increasing the number of judges is not sufficient to tackle this, which is why the aim should be to consider “a total overhaul of the system,” the former Chief Justice explained.

This, he said, would also require a radical change in the mentality of both judges and magistrates, of the legal profession and of the administration.

There were amendments trying to tinker with the criminal court procedure in the past, he explained. “When I joined the Attorney General’s Office in 1979 any crime which carried a punishment of imprisonment exceeding six months had to go to trial by jury. Since then, the jurisdiction of the court of magistrates has been expanded, and today a magistrate can sentence someone for a crime of up to 12 years imprisonment. The problem of delays and backlog before the Criminal Court was simply, albeit gradually, flushed from upstairs – the time-consuming and expensive trials by jury – to downstairs, into the laps of the Courts of Magistrates. Still, we still have these problems of delays.” This, he said, is why a radical overhaul is needed.

The long-term aim should be to consider an overhaul directed towards ensuring that a criminal case begins and ends without interruption, “with the hearing being conducted throughout the day and possibly the following day and the one after, so on and so forth. Judgement would then be handed down at the end of the hearing,” he said.

This, he said, will be difficult to implement in the short term. “But unless we have that aim for the long term, we're never going to really tackle the problem of delays.”

Judge De Gaetano noted that we should be emulating those European countries which do not have the same delays that we have. In these countries, the moment that charges are issued, he said, the trial commences, at the end of which they go for judgement. “Then of course, there may be some time for the appeal, and some jurisdictions have a third instance, which is the Supreme court – but the appeal at third instance is usually only on points of law.”

Asked about the mentality shift that would be needed to implement such an idea, he explained that when a lawyer is engaged to assist a client, “he or she must be prepared to assist that client uninterruptedly for a number of days, and not be dealing with six or seven other cases on the same day.”

He admits that such a system does bring up a number of questions. “Would that be financially possible? Or would the lawyers’ fees, for instance, be so exorbitant that no one could afford them? Would there have to be a more sophisticated legal aid system than we have at the moment?”

Asked what he thought about the idea of getting rid of the compilation of evidence stage altogether, he said that such an idea would require some very radical changes in police working methods and the way the police liaise with the Attorney General. “That would be tantamount to removing the ‘discovery’ stage of the criminal proceedings in serious cases. But it can be done. In England, for instance, the committal proceedings have been abolished. A person is arraigned upon an indictable offence, a prima facie case is made - very often not contested because the Crown Prosecution Service would have done its work properly -- then it's put off immediately for trial in six, eight or twelve months time before the Crown Court, the equivalent of our Criminal Court. In the meantime the parties exchange evidence for the purpose of discovery.” Judge De Gaetano said that such a system would require the highest degree of integrity and professionalism from the prosecution service.

Asked whether he found the European Courts of Human Rights to be more efficient than the Maltese courts, and if there is anything the local courts could learn, he said that one cannot compare the two.

“The Strasbourg court is there to ensure that the members states of the Council of Europe observe the provisions of the European Convention on Human Rights by securing to all persons within their jurisdiction, in a practical and effective manner, the rights and freedoms set out in the Convention and in the Protocols thereto. This means that individual petitions come from the 46 members states in almost as many different languages. Therefore, you have to have a system which deals with thousands of applications every year, in different languages and dealing with different legal systems. The registration of cases, their processing and the eventual decisions by one, three, seven or seventeen judges bear no resemblance whatsoever to the way domestic courts function.”

The Maltese courts have a different function, he said. “These courts have to deal with all the incidents of day to day life, on any topic – civil, criminal, commercial etc. So the area covered by the courts are different. That means the modus operandi of the Strasbourg court has to be totally different from that of the Maltese courts. The only thing one could emulate deals with the court’s recruitment of non-judicial staff,” he said, adding that the Strasbourg court has a system to only recruit the very best.

“Now that should be definitely emulated also at domestic level.”

Turning to his role as Commissioner for Education within the Ombudsman’s Office, he was asked about the effectiveness of the Ombudsman’s Office when it comes to getting the government to make changes if fault is found.

“It's not so much about getting the government to make changes. The very fact that the Ombudsman can hold either the government or public institutions to account, even publishing the negative reports that there may be on a particular institution, is already something the government has to contend with.”

There are some cases where the institution or ministry concerned would not agree with a recommendation, or does nothing about a recommendation even if it accepts it, he said. In these cases, the remedy is to send the report to the Prime Minister and ultimately to the Speaker of the House for it to be tabled in Parliament for examination by Members of Parliament and, by virtue of the fact that papers laid on the Table of the House are accessible to the public, by the public, he explained. “The aim of our work is to hold the institutions to account and to recommend remedies for administrative injustices,” he said.

He explained that a high percentage of complaints that come before him are either dismissed or settled amicably, with the Office acting as a mediator. In cases, however, where the complaints are sustained but nothing is done, it is up to members of parliament to see what they can do about it, he said. “Remember the Ombudsman and the three Commissioners are officers of Parliament.”

Asked whether the Ombudsman should be given more powers, he mentioned one particular idea.

In some countries, he said, services which are considered to be essential, and which until some years ago were provided by the state but are now provided by private entities, are also considered to fall within the Ombudsman’s remit. This, he said, should also be the case in Malta, adding that in that case the resources of the Ombudsman would also need to be increased.