No, it is not endemic to Malta. Across the world, court users complain that the courts take too long. For a regular court user facing endless talk from lawyers, reams of paper and mounting legal bills, a court case can feel like it goes on… forever.
Decisions handed down by the ECHR regularly find violations of human rights provisions by various EU member states because of delayed justice. Unsurprisingly, the 2020 Council of Europe’s European Commission for the Efficiency of Justice (CEPEJ) report showed that court cases in Malta take too long to conclude and are some of the longest in Europe. It takes an average of 2,250 days to resolve a money laundering case, 1,100 days to resolve a civil suit if it goes to appeal and 1,000 days for administrative matters. Some compilations of evidence in criminal cases take decades and we even had cases of accused persons waiting almost 11 years for their case to be heard in court. Within a span of a few days last year, we first had the Chief Justice pleading for more judges to be appointed to address delays and then the Justice Minister stating that increasing the judiciary complement will not solve everything and that what is needed is efficiency. At the same time, we had the president of the Chamber of Advocates stating that court delays are nothing compared to what they used to be, but that there was still a long way to go.
From my short humble experience working within our courts, I came across a wide range of reasons accounting for unreasonable and unnecessary delays. Adjournments were often called by lawyers because they would not have reviewed the case files, were otherwise ill-prepared or had a scheduling conflict. Prosecutors were reluctant to provide full information on evidence to defence lawyers, prompting the latter to request an adjournment. Prosecutors were understaffed, with one prosecutor representing multiple separate cases simultaneously. Adjournments may have been initiated by judges, for example, an indisposed or unprepared judge would have decided to postpone a hearing. Parties, witnesses or lawyers would be absent from court, often as a result of poor coordination between courts and service providers. Cases were transferred from one judge to another or from one lawyer to another.
Partisan politics apart, Justice Minister Zammit Lewis, and before him Minister Owen Bonnici, in a very short time span, were instrumental in introducing bold, major procedural and substantive reforms aimed at addressing our long history of court delays and as part of the Justice Reform programme. They understood the magnitude of the problem and the serious consequences of the failure of courts to dispose of cases in a reasonable timeframe. Legal certainty is a prerequisite for economic stability as delays to commercial or contractual disputes impact negatively on business, investment and private sector growth. Adjournments also impose a significant cost burden on the system.
We saw the extension and renovation of judicial facilities, an increase in the number of judges and judicial staff, the promotion of alternative dispute resolution mechanisms (ADRs) and Mediation, the extensive use of ICT technologies, a new and speedier service of documents under the E-justice, a revamp and modernisation of the Legal Aid System, an improvement of data collection and data analysis, the simplification and modernisation of procedures, including a major reform set to cut lengthy proceedings in criminal trials, as well as a substantial and intelligent use of the EU Structural Reform Support programme (SRSP). The potential use of AI systems will be an additional benefit.
Notwithstanding the importance of the above and other technical improvements, it is also important that reform efforts address the interests and incentives of judges, lawyers and court staff which may create delays. Strong judicial leadership can help to reduce the number of adjournments. While restrictions on adjournments can assist in reducing case delays, there is a risk that a lack of flexibility can result in cases being dismissed prematurely. The use of penalties, sanctions and fines for non-compliance with deadlines can be effective in addressing some of the cause of adjournments and other delays; however, there are circumstances in which the use of “soft sanctions” may be more appropriate. “Soft sanctions” could take the form of arranging meetings or discussion groups to address problematic areas of practice and strategies to improve, organising presentations by legal educational specialists on a particular area of law which is proving problematic, engaging an external facilitator to assist in the communication between the court and lawyers and creating additional or alternative rules and procedures that encourage the full preparation of cases before filing.
No matter how many reforms are introduced or how much effective they might be, court delays will always be with us. In as much the same way and for the same reasons, that the fight against drugs is never won, so it is with court delays. Particular battles might be won with time, but the fight is never over.
A court might be the most depressing place on earth. All the more so for anyone having to spend a substantial part of his life in such an environment. When in court, the primary role of lawyers is not merely to prove or disprove innocence or to vindicate one’s cause; unbeknown to almost all lawyers and their clients, it is above all to save court time. A late justice is a lame justice.
Finally, I believe there should be a stronger reciprocal relationship of trust and co-operation between lawyer and client, in so far as the courts of this country should not be the places where resolution of disputes begins. They should be the places where disputes end after alternative methods of resolving disputes have been considered and tried. At the end of the day there is a higher court than the courts of justice and that is the court of conscience. It supersedes all other courts.
Dr Mark Said is an advocate