No, court delays are 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 European Court of Human Rights regularly find violations of human rights provisions by EU member states because of delayed justice.
Unsurprisingly, the 2020 Council of Europe’s European Commission for the Efficiency of Justice 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. We have even had cases of accused persons waiting nearly 11 years for their case to be heard in court.
Within a span of a few days last year, the chief justice pleaded for more judges to be appointed to address delays, the justice minister said increasing the complement of the judiciary would not solve everything and that what is needed is efficiency, and the president of the Chamber of Advocates declared that court delays were nothing compared to what they used to be but there was still a long way to go.
From my short humble experience working within our courts, I have come across a wide range of reasons that account for unreasonable and unnecessary delays.
Lawyers were often called for adjournments because they had not 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. Judges were indisposed or unprepared, and so called for a postponement. Parties, witnesses or lawyers were 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 Edward Zammit Lewis, and before him, Owen Bonnici, were, in a very short time span, instrumental in introducing bold, major procedural and substantive reforms aimed at addressing our long history of court delays as part of the Justice Reform Programme.
They understood the magnitude of the problem and the serious consequences of the failure of the courts to dispose of cases in a reasonable time. Legal certainty is a prerequisite for economic stability, as delays to commercial or contractual disputes impact businesses, investment and private sector growth. Delays 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 mechanism and mediation, the extensive use of ICT and a new and speedier service of documents under E-justice.
We also saw 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. The potential use of AI systems will be an additional benefit.
A late justice is a lame justice- Mark Said
Notwithstanding these and other technical improvements, it is also important that reform efforts address the incentives of judges, lawyers and court staff in creating 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 causes 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. It could also involve organising presentations by legal educational specialists on a particular area of law that is proving problematic, engaging an external facilitator to assist in 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 effective they might be, court delays will always be with us. In 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 may be the most depressing place on earth. All the more so for anyone having to spend a substantial part of their 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 the court time. A late justice is a lame justice.
Finally, I believe there should be a stronger reciprocal relationship of trust and cooperation 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 resolution have been considered and tried. At the end of the day, there is a higher court than courts of justice, and that is the court of conscience. It supersedes all other courts.