The 2020 Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) report shows that court cases in Malta take too long to conclude.

This month, the CEPEJ released its eighth biennial report titled "European judicial systems - CEPEJ Evaluation Report – 2020 Evaluation cycle (2018 data)". It contains quantified, commented and analysed data on the functioning of the judicial systems of 45 European States and 3 observer States (Morocco, Israel and Kazakhstan), making it possible to measure the efficiency and quality for each of them.  It is important to note that while this report was published in 2020, it is based on data collected in 2018.

Among other factors, the report comments on legal human resources available in a specific country as well as the efficiency of legal systems which have been a hot topic within the legal field in Malta with both Justice Minister Edward Zammit Lewis and Chief Justice Mark Chetcuti saying that certain efficiency issues need to be addressed.

Efficiency Indicators

For the evaluation of efficiency in courts across EU states, the CEPEJ developed two performance indicators – Clearance Rate (CR) and Disposition Time (DT) – which, when examined together, present an overall picture of the judicial efficiency in a particular judicial system.

CR is the ratio obtained by dividing the number of resolved cases by the number of incoming cases in a given period, expressed as a percentage. DT is the theoretical time necessary for a pending case to be resolved, taking into consideration the current pace of work. The resulting indicator should not be taken as an actual calculation of the average value. It is reached by dividing the number of pending cases at the end of a particular period by the number of resolved cases within that period, multiplied by 365. More pending than resolved cases will lead to a DT higher than 365 days (one year) and vice versa.

These are analysed against three court case types (civil, criminal and administrative) which are divided depending on them being first and second instances.

When it comes to CR, civil cases are cleared at 93.7% (100.7% EU median), criminal cases are cleared at 102.5% (100% EU median) and administrative cases are cleared at 91.2% (99.7% EU median).

However, the situation is quite different for second instance cases, with civil cases having a 79.9% CR compared to the 101.7% EU average. The report states that this raises fears of a further backlog accumulation and urged for judiciaries to introduce actionable measures if they have not done so yet.

This is also seen in the most notable figure regarding DT. For second instance civil court cases it is indicated that it takes over three years for them to be resolved, 1,119 days to be exact, which is well above the 141-day EU average. Such discrepancy can be found across all case types and instances, such as second instance criminal cases which take 534 days compared to the 104 average.

For first instance, civil cases take 440 days (201 days EU median), criminal cases take 298 days (122 days EU median) and administrative cases take an astonishing 1,056 days (241 days EU medium).

The report states that the DT figures could be inaccurate and should not be taken as the actual average value per se. Nonetheless, when one compares these statistics to the number of pending cases Malta has, one can see that there is a discrepancy here as well.

The number of first instance civil cases is 2.045 per 100 persons compared to the 1.16 EU median. With regards to criminal cases, the report shows that Malta has 2.436 pending cases per 100 people (0.4 EU median) while administrative cases have a lower number of pending cases (0.082 per 100 people) when compared to the EU median of 0.2.

The report notes that in eight states, cases older than two years take up over one-fifth of the pending cases, and Malta is one of them.

At the start of October of this year, Justice Minister Zammit Lewis had said in parliament that there are 113 cases in Malta that have been pending for conclusion for six years since they started. He had said that this kind of extreme delays in court cases is unacceptable as it is a detriment to Malta’s society and its citizens.

In its report, the CEPEJ also stated that the efficiency of courts and public prosecution services is one of the vital factors for upholding the rule of law and a critical component of a fair trial. “It facilitates good governance, promotes the fight against corruption and builds confidence in institutions. Efficient courts and public prosecution services enable individuals to enjoy their economic and social rights and freedoms. They improve the business climate, fosters innovation, attracts foreign investment and secures stable state revenues.”

Human Resources

The CEPEJ Evaluation Report shows that in 2018, Malta exceeded the EU median for the number of lawyers that a country has per 100,000 persons, with Malta having 322.7 lawyers against this demographic. This is 200 more than the EU median of 123 lawyers. Even the number of non-judge staff per capita is higher in Malta (86.8) than the EU median (60.9).

The report attributes this increase in the workforce to legal aid which has increased in 25 States and entities and one observer state, while 13 countries and one observer have decreased it. “The major increase is registered in Malta and Ukraine, while the steadier decrease is in Hungary. In Malta, since 2017 there has been an increase in the number of lawyers and staff recruited by the Legal Aid Agency and an improvement in their remuneration.”

However, when it comes to the judiciary, the situation is quite different as the number of judges per 100,000 persons in Malta is far lower than the EU median of 17.7 judges, standing at 9.5 in 2018.

Here, one can recall Chief Justice Chetcuti’s statement at the start of the forensic year, which shows that this situation is still applicable in 2020. He had said that “legislative intervention is needed to increase the judiciary’s workforce, not only because of the volumes of cases it receives, but also due to the ever-growing specialisations needed for certain cases.”