Court delays pose ‘serious challenge’, EU rule of law report says

The 2021 European Union Rule of Law Report has found that “serious challenges” remain regarding the efficiency of the justice system, in particular the length of court proceedings.

The report also highlighted the impact of the low number of judges and the lack of digitalisation of justice in Malta as contributing to the lack of efficiency.

The report does note ongoing discussions to enhance the independence of specialised tribunals and that the 2020 reforms – in particular the reform of the system of judicial appointments and of judicial discipline – “have contributed to strengthening the independence of the Maltese justice system”. 

It notes how the “perception of judicial independence has “notably improved” and that steps have been taken to depoliticise the appointment of the Chief Justice, although the report makes it clear that “certain aspects of this procedure require further attention”.

The transfer of prosecutions from the police to the Attorney General is progressing. Whereas this transfer needs time, the report recommends it is important that it also covers less serious offences. 

As the report notes, “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.”

Key points from 2021 EU rule of law report

• ‘Serious challenges’ hamper efficiency of justice system
• Changes to Broadcasting Act have not enhanced ‘effective independence’
• Notes ‘lack of consistency’ in following-up Ombudsperson’s recommendations
• Highlights limited public consultations in the law-making process

On the digitalisation of justice, the report highlights “important gaps” including the lack of use of digital technology by the courts and prosecution services, the lack of electronic communication tools by courts and by the prosecution service, and a lack of digital solutions to conduct and follow court proceedings in criminal cases. 

Along such lines, it welcomes the law adopted in February 2021 that allows the Minister for Justice to enact regulations allowing for the electronic filing of criminal judicial acts, to electronically submit notifications, and to conduct criminal court proceedings online.

The length of proceedings also remains a “serious concern”.  As the report highlights, the duration of litigious civil and commercial cases at first instance, in 2019, remained very long (465 days), showing an increasing trend. 

The duration of these proceedings in appeal was also 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. 

“While the time needed to resolve administrative cases at first instance remained lengthy, it has shown a decreasing trend. The clearance rate for civil, commercial, administrative and other cases in 2019 was below 100% and continued to decrease. 

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

“These concerns are exacerbated by the COVID-19 pandemic that led to the suspension of the work of courts for a period 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. 

Moreover, 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 backlog of cases before the Court of Appeal by providing the possibility for the appellate court to grant a hearing only when necessary”

Corruption: Conviction track record in high-level cases ‘remains to be established’

When it comes to the new targeted anti-fraud and corruption strategy approved by the government, the Commission acknowledges that while investigative and prosecution bodies have improved their capacity to deal with corruption cases, as evidenced by an increase in the number of cases that have been opened, “investigations continue to be lengthy depending on their complexity and a track record of convictions in high-level cases remains to be established”.

Police Commissioner Angelo Gafa: The report says the verdict is still out on the reforms enacted last year concerning the appointment of the police commissioner

The verdict is still out, according to the report, on the recent reforms concerning the appointment of the Police Commissioner and of the Commissioners of the Permanent Commission against Corruption, as well as the reorganised cooperation between the Police and the Attorney General.

“The results,” according to the Commission, “are are yet to be seen.”

Further changes are envisaged on the rules governing the integrity of public officials, including Members of Parliament and ministers, and specific guidance has been put in place to mitigate the risks of corruption in public procurement during the COVID-19 pandemic.

Corruption perception relatively high

The report says, “As stated in the 2020 Rule of Law Report, the ongoing investigation and separate public inquiry into the assassination of investigative journalist Daphne Caruana Galizia have unveiled deep corruption patterns and raised a strong societal demand for significantly strengthening the capacity to tackle corruption and carrying out wider rule of law reform.”

It also notes how the perception among experts and business executives is that the level of corruption in the public sector remains relatively high. 

It cites the 2020 Corruption Perceptions Index by Transparency International, where Malta scores 53/100 and ranks 15th in the European Union and 52th globally. 

Perception of corruption remains relatively high

It acknowledges that a targeted National Anti-Fraud and Corruption Strategy for the period 2021-2024 was approved by the Government in March. The Cabinet of Ministers approved the strategy, which was notified publicly to the Parliament in May 2021. 

Its pillars are training and education, sharing of information, institutional cooperation (domestically and internationally), as well as accountability on public financing. The implementation of the strategy is coordinated by a committee chaired by the Internal Audit and Investigations Department (IAID). 

Representatives of the Ombudsman office, the private sector, civil society and non-governmental organisations, however, regretted not having been invited or consulted prior to the adoption of the strategy. 

The report also underscores how, since October 2020, the Attorney General has taken over the prosecution of certain serious crimes, including high-level corruption. A total of 14 prosecutors are dedicated to financial crimes and, since the second quarter of 2020, a task force on complex financial crimes has been in place. 

Maltese journalists still face obstacles

Journalists in Malta, the report notes, “still face obstacles when requesting access to information held by public authorities as well as in the exercise of their profession more generally”.

It pays heed to the fact that the public inquiry into the assassination of journalist Daphne Caruana Galizia continued to hear testimonies throughout 2020 and 2021, concluding its work on 15 July 2021, and that there have been developments in the separate criminal proceedings related to the case.

Amendments to Broadcasting Act have not enhanced ‘effective independence’

Amendments to Malta’s Broadcasting Act, according to the report, “have not introduced any changes which would enhance the Broadcasting Authority’s effective independence”. 

It also refers to the Constitutional Court case opened by Lovin Malta on the ownership by the two main political parties of their own television and radio stations. Lovin Malta’s CEO has since joined ranks with one of those parties as its official strategist.

Also concerning the press, the report also refers, in favourable terms, to how Malta had established a support scheme for news media providers to counteract the adverse effects of the COVID-19 pandemic.

‘Lack of consistency’ in following-up Ombudsperson’s recommendations 

While the report acknowledges that the Ombudsperson’s role has been strengthened, it noted “a lack of consistency in the follow-up to his recommendations”. 

The draft law on the establishment of a national human rights institution is also still under discussion in Parliament.

Ombudsman Anthony Mifsud: Report acknowledges that Ombudsperson's role has been strengthened but there remains a lack of consistency in following up his recommendations

The report praises the fact that reforms carried out to enhance checks and balances on appointment of persons exercising top executive functions as well as appointments to certain independent commissions, which had been proposed in 2020, have been adopted. 

“Remaining concerns regarding the appointment process for certain other public bodies will be addressed under the Constitutional Convention,” the report suggests, observing that the timing and organisation of the Convention are still to be set due to the ongoing COVID-19 pandemic.

Limited public consultations in the law-making process

Challenges remain in relation to the “limited use of public consultations in the law-making process, including on structural reforms. While civil society organisations continue to participate actively in the public debate, they raised certain concerns on access to funding and actions by the Commissioner for Voluntary Organisations.”

Government reaction

Prime Minister Robert Abela said the Maltese government remains committed to strengthening the rule of law and will continue engaging om ongoing cooperation to achieve this goal.

Reacting to the EU report, the government said since January 2020, it implemented substantial changes to further strengthen the rule of law in Malta, and carried out significant reforms to strengthen democracy and the institutions that deliver it.

"The digitalisation of the justice system is already underway as part of the €10m allocated through the EU’s Recovery and Resilience Fund (RRF) to strengthen Malta’s institutional framework. A number of initiatives have already been taken and the government presented a solid plan to the RRF. As a result of this investment, the efficiency of the justice system will increase, and the waiting time will be decreased," the government said.

Read the full report below: