The former chief justice and judge on the European Court of Human Rights, Vincent De Gaetano, proposes an approach to reducing Malta’s notorious court delays, in an interview with Matthew Xuereb.
Malta’s judicial system has been given a lot of attention by, among other bodies, the Venice Commission. What is your view of the state of the system?
The judicial system, often identified with the judiciary, is the most important of the county’s institutions for the preservation of democracy through the rule of law.
Of course, the two are not the same thing: the judiciary operates within the framework of the judicial system, as laid down in the various laws, notably in the Constitution of Malta and in the Code of Organisation and Civil Procedure.
There is a symbiotic relationship between the two. One speaks, for instance, about the independence and impartiality of the courts. The first, independence, has more to do with the system than with individual judges or magistrates, while the second, impartiality, is more grounded in the individual concerned.
Likewise, efficiency – both of the system and the individual judge or magistrate – may contribute to the efficiency or inefficiency of a particular court.
I have been a lawyer for over 44 years and a judge for close to 26 years, and my assessment of the system has changed very little: we have a basically good legal framework with a judiciary that is, for the most part, dedicated, but with endemic problems of delays and inefficiency which no government has sought to address in a holistic manner.
More recently, the ineffectiveness of the judicial investigation of serious crime has also become apparent.
Do you agree with the Venice Commission’s views about the problems with independence of the judiciary?
Perceptions are important in the administration of justice. Suffice it to mention the aphorism “Justice must not only be done but must also be seen to be done”, originating from a judgment delivered by Lord Chief Justice Hewart in 1924.
On the other hand, you can have a situation where justice appears to be done when in fact it is not being done. As the historian and Balliol College scholar Timothy Snyder has written, “It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges.”
In recent years the perception had gained ground, in my view not without justification, that the unfettered discretion of the prime minister in the appointment of judges and magistrates was impinging upon the independence of the judiciary.
It is this that was the focus of the Venice Commission’s latest report on the rule of law in Malta as far as the judiciary was concerned. The Commission was right to address the issue and to call for changes.
You have mentioned court delays. A police officer was recently acquitted and given a paltry compensation after a 25-year case. Standing on the outside, do you see any improvement in the situation?
Let’s put the problem in perspective first. The cases which make the news headlines are not necessarily the typical cases but are certainly indicative that all is not well.
Up-to-date statistics are very hard to come by. The figures for Malta on the website of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe go back to 2016.
They show a dismal picture, particularly with regard to the length of time it takes to dispose of cases on appeal, both civil and criminal. For instance, in civil cases on appeal, the European median is 122 days. This is the theoretical time for a pending case to be finalised on appeal, given the current pace of work of the particular court. In Malta it stood at 783 days.
Criminal appeals fared even worse: a European median of 77 days but of 1,025 days – more than two-and-a-half years – for our Court of Criminal Appeal.
This latter figure appears to have been due for the most part to an “increased caseload” before that court in its inferior jurisdiction, that is appeals from the magistrates’ court.
No one seems to be able to explain how this came about when the number of judges was increasing, even if marginally.
When I was appointed Chief Justice in 2002, I found that some cases in the Court of Appeal had been waiting for a first hearing for almost three years. By the time I left in 2010, that had been reduced to just over a year – all mainly due to the work of my brother judges in the two chambers of the Court of Appeal and to the indefatigably brilliant pair of deputy registrars we had in that court.
I am informed that now the average waiting time is creeping close to five years.
The rule of thumb is that there is a violation of the reasonable time requirement under both the Constitution and the European Convention on Human Rights if a case is not decided within four years at one level of jurisdiction, and within six years at two levels of jurisdiction.
Would you suggest that increasing the number of judges and magistrates would solve this problem?
This is only one aspect of the problem. According to the CEPEJ statistics, Malta still ranks on the low side with regard to the number of professional judges per 100,000 population.
Actually, even worse is the number of professional prosecutors, which in 2016 stood at 4.1 when the European mean was 11. The number of prosecutors in the Attorney General’s office has increased recently.
Incidentally, we seem to have a glut of lawyers: 301.3, with the European mean at 119.2 per 100,000 population.
What are the other issues involved in delays?
Let’s take civil and commercial proceedings. The law still allows a defendant to produce his evidence in reply to the plaintiff’s demands as the case progresses. A lawyer advising a client as to whether to proceed to litigation cannot force the other party to disclose in advance the evidence it has in hand. This contributes in no small measure to unnecessary litigation.
Or take committal proceedings (kumpilazzjonijiet) in serious criminal cases. These are supposed to be concluded within a month, extendable to not more than three months. But we know that they drag on, through the system of referrals between the attorney general and the court for months and years, with the evidence produced in dribs and drabs by the police, and magistrates struggling with their diary to fit in the next sitting.
These proceedings are intended as a form of “discovery” proceedings for the benefit of the accused, as well as to ensure that a person does not go to trial unless there is a prima facie case against him.
I get the feeling that some judges and magistrates now believe that the more they write the more their judgment is going to look erudite
In England from 1967 onwards, committal proceedings became for the most part a mere formality, with the Crown Prosecution Service set up in 1985 to take over all prosecutions from the police, submitting all its evidence in the form of witness statements to the court and to the accused in just one sitting.
In 2013, committal proceedings were abolished completely, and cases go straight to trial before the Crown Court, although the accused can still request at a preliminary stage to dismiss the case for insufficiency of evidence.
Today in England a trial by jury is over and done with within a year of the arraignment of the person in court, which of course also means fewer problems regarding bail.
But would not this require new institutions to be set up?
Not necessarily. The government appears to be heading in the direction of expanding and empowering the Office of the Attorney General. Some of the necessary amendments to the law have already been enacted but are not yet in force.
Of course, an expanded AG’s office would need to be properly staffed and resourced if it is to take over all prosecutions. And it would have to prove that it is truly independent of the Executive.
More halls would be needed for trials by jury, and for the magistrates to conduct trials in an uninterrupted manner, as in a trial by jury, in the less serious cases.
The digitalisation of the registry in civil cases, which I know the current minister of justice is keen on, will help. It will help in reducing paperwork and possibly downsizing the staff in the registry, but it will not have a substantial effect on the timeframe.
As far as I am aware most initiatives in this respect come either from the Chamber of Advocates or from individual judges or courts. One such initiative was the pilot project undertaken by the third chamber of the Court of Appeal at the height of the COVID-19 lockdown, when 10 appeals were selected and heard by videoconference by agreement with all the parties concerned.
These were immediately put off for judgment for when the courts reopened, the bench having the advantage of writing the judgments while the courts were closed.
What do you say about the quality of judgments, including the lack of a proper yardstick for similar crimes?
No two crimes committed, even if they go by the same name, are identical. There are too many variables, including the circumstances in which the crime was committed, the circumstances of the victim and of the person committing the crime.
Where I see problems of quality is not so much in the sentencing stage, nor indeed in the substantive aspect of judgements. That is why there are the appellate courts after all, to rectify substantive errors. The problems lie with the formal aspect, in the way judgments are written. Many judges and magistrates still write judgments which are very reader unfriendly. Why is it necessary, in civil judgments, to repeat the application and the reply word for word instead of focussing on the core claim and counter claim?
Why is it necessary to introduce every other paragraph with “illi” (a leftover of the Italian “atteso che”)? Why not have all the judgments in numbered paragraphs, which would help for reference and citation purposes?
I get the feeling that some judges and magistrates now believe that the more they write the more their judgment is going to look erudite. Prolixity is viewed as a virtue.
Malta is one of four member states that do not require judges to undergo compulsory training. Is this a problem in your view?
Yes, it is. When I became a lawyer in 1976, judges and magistrates were appointed when they were in their late 40s or early 50s. Today they are appointed when they reach the minimum threshold established in the constitution. Even for seasoned lawyers, it is sometimes necessary to address negative individual idiosyncrasies immediately.
I know for a fact that the Judicial Studies Committee, in conjunction with the European Judicial Training Network, is striving hard in this direction, particularly after the committee’s budget was substantially increased in the last two years.
But this training is, unfortunately, still not compulsory. It would require an amendment in the Constitution to make it so.
Do you think members of the judiciary are prepared for complex investigations such as in genere investigations?
As I said, recent cases have cast doubt on the effectiveness of the judicial investigation of serious crime. Assigning these cases by lot to magistrates verges on the insane, as few, if any, have the necessary expertise for such complex investigations.
The problem could in part be addressed by having a small dedicated pool of specially trained magistrates, under the direction of the chief justice.
More critically, the pool would need to be provided with the necessary expert assistance and other resources not dependant on the approval of the ministry of justice, as, unfortunately is the case at present.
I am not sure whether any government has the political will to see this carried out.