Forget the rhetoric - let's get serious

The trauma experienced by people going through the law courts is not being given the importance it deserves. Does anybody care? I am not talking about hardened criminals in the criminal courts here, but victims, who unfortunately are sometimes meted out the same treatment - or at least that is how they feel about it - in civil cases and the family law court.

Some judges do their utmost to help victims and go beyond their remit in attempting to help. There is also a network of social workers and other relevant organisations that help. However, not all judges are as sensitive, and cases are sometimes prolonged unnecessarily, for example, through persistent 'no shows' of witnesses.

Now it is the person who is seeking retribution for a grievance that has to pay for the witness summons at Lm15 per summons, and that would not be so bad if the witnesses turn up when they are meant to.

But if they don't, they delay the case, which has to be adjourned, and the plaintiff has to pay again for yet another summons and the case is adjourned yet again.

Now an adjournment depends on the judge's schedule, so a slot would have to be found, which could surpass a three-month period. So for the victim who is awaiting closure to start the road back to 'normality' that waiting time prolongs the nightmare.

But 'tolerant' judges, when it comes to absent witnesses, is not the only problem. There are not enough of them. The government is not investing in either the law courts or the support social services.

A couple of months ago I referred to a case regarding a woman whose case for separation has been dragging on for six years. What was particularly harrowing about that case was that the so-called experts put a young daughter through the mill; despite all the rhetoric we have been hearing that the authorities are aware of the trauma children in such cases go through. Abuse was the cause of the application for separation.

Of course, we have another problem here. Separation is dealt with in the civil courts, but abuse is dealt with in the criminal courts, and sometimes the need of a quick separation hinges on the outcome of the criminal case, which could be lagging behind.

I know that cases of sexual abuse on children are being prioritised and are being dealt with by one magistrate. However, this is rather like robbing Peter to pay Paul. Presumably, this magistrate also had cases in hand or cases pending. And there are still many cases pending. If the situation is to be dealt with seriously we need more judges.

The Human Rights Commissioner for the Council of Europe (CoE) came to this conclusion when he commented on the backlog of judicial cases in his 2003 report.

"The Maltese judicial system, even if it is aware of the situation, has accumulated a considerable backlog of cases mainly in civil matters. This accumulation has resulted in significant delays.

"Delays also occur in criminal cases despite the fact that as a general rule seriously contested criminal cases take on average between two and three years to be decided. For cases going to trial by jury before the Criminal Court, instead of trial by the Court of Magistrates, the average is about four years."

The report acknowledged that the Maltese authorities "have implemented a number of reforms to accelerate proceedings and this had led to a reduction in the backlog of cases by 18 per cent in the last five years (1998-2003)".

"It is, for example, intended to oblige certain disputes to seek settlement through arbitration rather than in the courts. These modifications aim at narrowing the field of action of the judiciary."

But arbitration has its drawbacks. Although the tribunals have reduced the cases at the law courts, if anything because of the hefty court tariffs, it is not clear how effectively the administrative tribunals are working, especially since they do not all have judicial powers.

"Nevertheless, I think the priority should above all be given to the increase in the number of judges and magistrates, as it is they who are primarily responsible for providing just satisfaction within a reasonable time.

"This will be all the more necessary, if Malta implements the propositions regarding the intervention of a judge in determining the legality of migrants' detention," said the CoE's Human Rights Commissioner.

One magistrate has been appointed since that report. Overloading judges who are known to be efficient is not the answer, and apparently neither is decentralisation - cases being heard in tribunals outside the law courts Francesco Depasquale, the secretary of the Chamber of Advocates, feels strongly about the issue.

"The Chamber has made several regular demands to be given the tools to work with at the law courts. It is not just judges we are lacking; human resources in the form of clerical back-up and messengers are also inadequate," he told me.

This is backed up by the acting registrar in the criminal court, Paul Miruzzi, who said the pool of deputy registrars, which should have five people to deputise to cover for illness, leave, etc., stands at nil. And there are 12 positions for clerks and messengers which need to be filled.

Dr Depasquale also said that the attempt to decentralise by the formation of various tribunals was not the answer. "Passing the buck without the necessary resources will not solve anything", he told me, "the small claims tribunal, for example, has still not been given sufficient resources," he added.

He said that the Chamber regularly advises and makes recommendations to the Ministry of Justice but they are just as regularly ignored.

More on illegal structures

During the debate on the MEPA financial estimates on Wednesday, Environment Minister George Pullicino announced that the Environment and Planning Authority (MEPA) is to raise the maximum penalty to be imposed on a developer who seeks to sanction development made without a permit. He told Parliament that this penalty would be raised from the current Lm1,000 to Lm10,000.

Now that shows commitment - or does it? Will that deter a developer seeking sanction for a development without a MEPA permit? I would say it depended on the size of the development. A mere Lm10,000 will not deter a developer with a site which might make millions. It is only the small fish MEPA will deter from seeking sanctions, which is still a good thing, but nowhere near enough.

More importantly, the fine is for those seeking sanction on an illegal development, which has been allowed to stand. To be taken seriously a hefty fine should apply to an illegal development as soon as it is detected, not to those who want to carry on with a development, which had been deemed illegal.

Here are a few reasons why, sent in by e-mail:

I am not at all surprised by your column last Sunday 'Direct action is no such thing' and the related letters to the editor. My own experience is that:

1. Stop and Enforcement Notices do not stop anything and enforcement against an entrepreneur is a rarity indeed. 

2. Direct action is seriously contemplated only against the humble citizen. In the case of big business direct action may be promised but it must not be carried out.

3. Stop and Enforcement Notices are promptly neutralised by a series of fresh applications. In the meantime the abusive construction is allowed to remain in profitable and illegal use in spite of any S&E notice.

4. MEPA does not use the measures it already has at its disposal to curb building abuses by big business. The passage of more regulations is futile as long as MEPA continues with its practice of taking "direct action" only against the average, helpless citizen but very rarely against big business.

In one case in which my family is directly involved (Applications PA2543/93, PA7162/95, PA3348/99, PA2591/02: Stop and Enforcement Notices ECF545/94 and ECF 972/99: and Appeals before the Planning Appeals Board 435/99E and 419/01):

a) An illegal commercial garage was allowed to operate continuously for 11 years despite two S&E notices by the notorious expedient of submitting fresh quasi-identical applications.

b) With the co-operation of MEPA, the abusive developer readily obtained a permit from the Malta Transport Authority for a public service garage when the garage was under an S&E notice and when MEPA had imposed the condition that the garage "shall not be brought into use until a Final Compliance Certificate, certifying that the development has been carried out in full accordance with the plans...has been issued by the Planning Authority".

c) On the strength of this irregular permit for a public service garage the Planning Appeals Board approved extra large garage door openings, which had been refused by the Development Control Commission. However, the Appeals Board laid down certain conditions, which had to be observed within six months otherwise "... this permit is to be considered to have been withdrawn".

Today, two and a half years after the decision of the Planning Appeals Board, its conditions have not been fully complied with, but the garages are still in daily use and MEPA behaves as if the permit has never been withdrawn. (Francis Saliba, MD)

You must have volumes of correspondence, published and unpublished, regarding pigs kept in illegal buildings at Zejtun at The Sunday Times.

The MEPA Website shows that ECF 215/94 has been awaiting direct action since April 1999. Why?

Now more incomprehensibly MEPA appears to be allowing/condoning further works to be carried out on structures on a site, which has been the subject of three ECFs namely 215/94 issued August 1994, ECF 215/94 issued in August 1996 and ECF 1044/99 issued in December 1999.

The owner was directed to remove all illegal structures within 21 days on August 29, 1996. Notwithstanding this, the illegalities persist. 

I reported to MEPA, both verbally and in writing, on the 11th instant, that works are being carried out on a site which MEPA had directed to be demolished within 21 days in August 1996.

Despite my insistence on action, after at least three inspections and the passage of three weeks, illegal work is still in progress. (Albert Chetcuti)

phansen@timesofmalta.com