The Malta Independent 5 August 2021, Thursday

Court delays remain a ‘serious concern and challenge’ – EU rule of law report

Shona Berger Wednesday, 21 July 2021, 13:37 Last update: about 14 days ago

The 2021 European Commission Rule of Law report has highlighted that “serious challenges remain as regards the efficiency of the justice system in Malta, in particular the length of court proceedings.” 

The report also found that the low number of judges and the digitalisation of justice are contibruting factors to the lack of effiency of the justice system. The number of judges per capita is among the lowest in the EU. 

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According to the report, the association of Judges and Magistrates has called on the government to appoint at least six new magistrates in order to ensure the efficiency of the Maltese justice system. 

The report highlights that the duration of litigious civil and commercial cases as first instance, in 2019, remained very long (465 days), showing an increased trend since 2017. 

The duration of these proceedings in appeal was very long (875 days) and the average length of money laundering cases remained particularly long in 2019 (over 1,350 days), even if with a decreasing trend. 

The report said that “while the time needed to resolve administrative cases at first instance remained lengthy, it has shown a decreasing trend since 2017. The clearance rate of civil, commercial, administrative and other cases in 2019 was below 100% and continued to decrease.” 

Serious concerns about the efficiency of the Maltese justice system were also raised.

“The COVID-19 pandemic that led to the suspension of the work of courts for a period in 2020 and continues to hamper the activity of courts. In relation to criminal proceedings, in November 2020, the Minister for Justice announced amendments to speed up magisterial inquiries and criminal proceedings as well as to reduce the backlog in the Court of Appeal.”

Meanwhile, a new law in the field of civil procedure has been enacted that would provide for a shortening of the compilation of evidence. 

“The law also appears to aim at reducing the backlong of cases before the Court of appeal by providing the possibility for the appellate court to grant a hearing only when neccesary.” 

With regard to the level of perceived judicial independent, it was noted that this “improved and is now high.” This perception among the general public has improved significantly since 2020 (52%), compared to 2016 (44%). This perception of judicial independence has also improved among companies. 

The report highlighted that the new system of judicial appointments, adopted in July 2020, has contributed to strengthening judicial independence. The Venice Commission welcomed this implemented reform to strengthen the independence of the justice system.   

It was noted that steps have been taken to depoliticise the appointment of the Chief Justice, but certain aspects of this procedure require further attention. 

The transfer of certain types of prosecutions from the police to the Attorney General is progressing according to a timeline, but the report noted that there is no timeline for the transfer of the less serious offences and recommended that these are also covered. 

“The government’s plan is to continue, until 1 October 2024, transferring annually an additional number of offences to the Attorney General. However, this plan does not include the transfer of contraventions or crimes punishable with a fine or a maximum of two years’ imprisonment or less (summary cases).” 

“Currently, no clear indication exists as to whether these cases would also be subject to the transfer. While this transfer needs appropriate time, it would be important to transfer all prosecutions, including for summary offences, to the Attorney General and to do so as soon as possible,” the report said. 

Meanwhile, the report also higlighted that there are ongoing discussions in the context of the Recovery and Reslience Facility to improve the level of independence of specialised tribunals. 

With regard to the digitilisation of the justice system, the report noted important gaps and areas that could be further strengthened. This include the use of digital technology by courts and prosecution services, the use of electronic communication tools by courts and by the prosecution service, and the digital solutions to conduct and  and follow court proceedings in criminal cases. 

Anti-corruption framework 

The perception among experts and business executives is that the level of corruption in the public sector remains relatively high. The report noted that Malta scores 53/100 and ranks 15th in the EU and 52th globally. This perception has significantly decreased over the past five years. 

With regard to the new targeted National anti-fraud and corruption strategy for the period 2021-2024 approved by the government, it was noted that, while investigative and prosecution bodies have improved their capacity to deal with corruption cases, as shown by an increase in the number of cases opened, investigations continue to be lengthy depending on their complexity and a track record of convictions in high-level cases remains to be established. 

Under the newly appointed Police Commissioner Angelo Gafa, it was noted that new measures were introduced to improve integrity in the Police. 

Although the independence of the Permanent Commission against corruption has been strengthened, clear results of recent reforms are still missing. 

Specific guidance has been put in place to mitigate the risks of corruption in public procurment during the Covid-19 pandemic.

The report also acknowledged that the role of the Ombubdsperson has been strengthened but said that a lack of follow-up to his recommendations was present.

The proposal to establish a national human rights institution, proposed in 2019, is still being discussed in Parliament.

Amendments to Malta’s Broadcasting Act have not introduced any changes which would strengthen the independence and functioning of the Broadcasting Authority, the report said.

It was also noted that the lack of legal framework regulating state advertising continues to provide room for abuse both by the government and by individual politicians. 

With regard to journalista in Malta, the report highlighted that “they still face obstacles when requesting access to information held by public authorities as well as in the exercise of their profession more generally.”

The public inquiry into the assassination of investigative journalist Daphne Caruana Galizia continued to hear testimonies throughout 2020 and 2021, concluding its work on 15 July 2021. There have been developments in the separate criminal proceedings relating to this case.

Furthermore, the report noted that challenges remain in the “law-making process as regards the limited use of evidence-based instruments and effectiveness of public consultation.”

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