Recent Developments in the judicial field in Malta
- Extension and renovation of judicial facilities
The Government invested in the total refurbishment of an adjacent multi-storey building in Valletta, which is now housing the new offices of the Chief Justice, 18 Judges along with their staff and 3 new halls – which are now in full use. All this will increase the number of halls from 24 to 27 and will address the problem of shortage of halls available in view of the constant increase in the number of sittings being held. This is in line with the Justice Reform Programme, intended to decrease the backlog in Court cases. A new Training Room and a new Court Library were inaugurated in August 2017.
- The establishment of a First Hall of the Civil Court in Gozo
Act 1 of 2018 enacted on 19 January 2018 provides for:
i. the establishment of a Commercial section of the Civil Court;
ii. the establishment of additional Chambers of the Court of Appeal;
iii. the abolition of the Court of Magistrates (Gozo) sitting in its superior jurisdiction;
iv. the extension of the jurisdiction of the First Hall of the Civil Court to the Island of Gozo and Comino;
v. the extension of the jurisdiction of the Civil Court (Family Section) to the Island of Gozo and Comino; and
vi. the extension of the jurisdiction of the Civil Court (Voluntary Jurisdiction) to the Island of Gozo and Comino.
Through this Act, to the Civil Court (Commercial Section) there shall be assigned applications falling within the competence of the Civil Court and which relate to matters regulated by the Companies Act. The Civil Court (Commercial Section) shall take cognisance of all claims, expressly assigned by law to such section of the Civil Court, against persons residing or having their ordinary abode in the Islands of Malta and the Islands of Gozo and Comino. Provided that where the Civil Court (Commercial Section) is to hear causes concerning claims against persons residing or having their ordinary abode in the Islands of Gozo and Comino, it shall hold its sittings in the building of the courts of Gozo. Through this specialised Court, the Maltese Government aims to continue further enhancing the efficiency and effectiveness of its national Justice and Court system.
- Increasing the number of Judges and Judicial Staff
Over the past months, each Judge in the Civil Courts has been assigned an experienced full-time lawyer chosen by the judiciary itself, with the duty of assisting the Judge in the drafting of judgments (an average of 3 different judgements per week); writing memoranda on pending lawsuits and assisting the Judge in the drafting of court orders.
From 2015 to 2016 the number of Judges has been increased by 1 and the number of Magistrates by 2, while from 2016 to 2017 the number of Judges has remained the same and the number of Magistrates has been reduced by 1.
From 2015 to 2016 the number of Court Attorneys has been increased by 2, while from 2016 to 2017 the number of Court Attorneys has been increased by 1.
From 2015 to 2016 the number of Judicial Assistants has been reduced by 1, while from 2016 to 2017 the number of Judicial Assistants increased by 2.
Hence the following are the number of Judges, Magistrates, Court Attorneys and Judicial Assistants as at:
- 31 December of 2015:
· 21 Judges;
· 21 Magistrates;
· 13 Court Attorneys;
· 15 Judicial Assistants.
- 31 December of 2016:
· 22 Judges;
· 23 Magistrates;
· 15 Court Attorneys;
· 14 Judicial Assistants.
- 31 December of 2017:
· 21 Judges;
· 22 Magistrates;
· 16 Court Attorneys;
· 16 Judicial Assistants.
All new court staff is given in-house training upon engagement and all court staff attends regular in-house training throughout the year.
Moreover, in February 2016 the Minister for Justice, Culture and Local Government (MJCL), presented to Parliament Bill 145 to deal with the manner in which members of the judiciary are appointed, disciplined and dismissed. This resulted in Act 44 of 2016, entitled ‘Constitutional Reforms (Justice Sector) Act’, which passed through Parliament on 20 July 2016. Further details on this Act can be found hereunder.
- Promotion of Alternative Dispute Resolution Mechanisms (ADRs) and Mediation
Mediation: The Government has embarked upon the amendment of the Mediation Act to further incentivise the use of ADR procedures. The amendments to the Mediation Act by way of Act VIII of 2017 have to date been published and rendered as an integral part of Chapter 474 of the Laws of Malta. Legal Notices have also been introduced to incentivise the public to resort to mediation proceedings and in turn and if the outcome of the mediation is in whole or in part successful – leading to a settlement – the parties in question shall be entitled to a partial refund of the expenses incurred. This measure is in line with recommedations made by the European Commission in COM (2002) 196 whereby access to such ADRs is being further incentivised. Logistical measures have now been completed in order to widen the scope of compulsory mediation to disputes regarding leases and leaseholds and in the near future further Legal Notices will be introduced in this regard.
In the short term, the figures for mediation applications would be moderate, but the impact of this measure should be such that in the medium term (2 to 3 years), mediation applications should steadily increase thereby also making the public more aware of other avenues for resolving disputes. A measure of this nature may consequently also have a bearing in the long term in reducing the case management of the Courts, with efficient and effective mediations.
Arbitrations: Since the inception of the Malta Arbitration Centre in March 2000, a total of 5,270 cases (inclusive of both domestic as well as international cases) were filed with the Centre. Until 31st December 2017, 86% of these cases have been closed. Arbitration legislation has over the years been amended in order to render the service more efficient to the public. Government is committed to bolster and improve the Arbitration Centre to be a more efficient and effective hub for dispute resolution, both locally and internationally.
- Extensive use of ICT Technologies
Apart from what was reported in last year’s NRP, the making available to advocates, notaries and legal procurators of the Interdiction and Incapacitation Registers (which went live on 23 January 2018) and the scanning of certain judicial acts, continues to act in such a way as to continue addressing bureaucracy and delays in the Civil Courts.
- E-justice and the service of documents
· E-filing of applications for the Small Claims Tribunal and the Appeals from those decisions – also extended to applications before the Administrative Review Tribunal.
· E-filing of judicial letters in all Courts.
· E-filing of applications in the Courts of Magistrates.
- Upgrade of the Web Portal
The www.justiceservices.gov.mt website offers a compilation of all main and subsidiary legislation as well as a free civil case management system. Court statistics and Civil and Criminal Law judgments are also available through this website.
A whole plethora of ICT solutions have been given to practitioners and the general public for free during recent years and the Ministry intends to continue enhancing the provision of online services through web facilities also in the future. In this regard, the Ministry is currently working on modernising the current services and on ensuring that all such services are available through a mobile terminal device. In this regard, listed below are current ongoing initiatives:
· · www.justice.gov.mt: is a mobile-friendly portal which serves as the main web portal for the Justice Sector, providing news and links to all online services available throughout the Justice sector.
· · www.eCourts.gov.mt: is a mobile-friendly portal aimed at providing citizens with the opportunity to follow their cases and filed Acts through the portal, as well as register for mobile/SMS notifications (through: https://ecourts.gov.mt/onlineservices/sms) about upcoming and deferred sittings. The facility to enable the online payment of Courts Fines (through https://ecourts.gov.mt/onlineservices/efines) was also successfully launched in 2017. Legal Professionals are now able to access information about Civil Cases, Acts and Warrants amongst others.
· Internal Services through an Intranet are also being provided in order to enable the effective and efficient administration of Court-related processes. For instance, the eFees facilities were finalised in 2016. Such facilities aim to provide Court employees with the facility to print out an accurate taxed bill of costs of each Civil case which would be automatically adjourned. This enabled procedures to be expedited immensely since the computation of the taxed bill of costs used to be compiled manually for each Civil case. The eFees concept is now being improved, aiming to provide the facility to the general public, in order for the general public to be able to view their bill of costs online and effect payments online. Moreover, fees related to other matters – such as judicial acts – are being analysed with a view to be paid online.
· During 2017 all Acts of Law, as from 1980 onwards were successfully hyperlinked to the respective legal instruments as well as to the updates of such a legal instrument (such as Acts of Parliament and Subsidiary Legislation). This measure reduces the time employed by legal practitioners and users, in making use of this online service. During 2018, this concept will be taken farther. A call for tenders in order to implement machine-readable Acts of Law conformant to the European Legislation Identifier will be issued (updating the currently available services through justiceservices.gov.mt). Furthermore, work on online facilities for notaries will also be carried out in 2018.
- Electronic Register for the Termination of Mandates
The process of termination of general or specific mandates has now been made simpler, more accessible, less costly and will be processed by the Chief Notary to Government’s Office within 24 hours of filing (if this is filed on a working day).
- Online Register for Testamentary Searches
In order to decrease the level of bureaucracy in the administrative procedures involved when applying for testamentary searches of public and secret wills, this Government undertook the establishment of an online register for such testamentary searches. Notaries as well as citizens now have the opportunity to order testamentary searches online. The resultant searches will subsequently be sent to the client by post.
- Online Register for Interdicted and Incapacitated persons
In order to facilitate searches for the legal profession and in order to provide a much more efficient and inexpensive procedure, the Law Courts set up an online register for interdicted and incapacitated persons.
- Setting up a National Insolvency Register
Together with the MFSA, Government set up a National Insolvency Register and will in the future interconnect this register to the EU e-Justice Portal for the good functioning of cross-border insolvency proceedings. The project allows Courts and the MFSA to align the Maltese National Insolvency Registers to the requirements of the Insolvency Regulations. An online website has been created (corporateinsolvencyregister.com.mt). This will be online and fully operational in the immediate future.
- Dealing with backlog
Apart from those measures addressing backlog that were already reported last year, throughout 2018, Malta will also start reviewing its case-weighing system in order to better understand the nature and complexity of the cases being registered in courts. The idea is to establish a new case weighing system that reliably reflects the complexity of the cases being registered in our courts. This will thereby result in a better distribution of the caseload, a better understanding of the levels of efficiency according to case complexity and will ultimately also assist the Government in understanding how many more judicial resources are needed in order to ensure sustained efficiency. In February 2018, a specialised workshop organised by the Council of Europe was held in Malta in order to establish a framework for the setting-up of such a system. Malta will therefore benefit from such expertise in order to establish its new system. Once in place, a more detailed efficiency analysis can be carried out on each and every court. In the coming months, the judiciary will be agreeing on a model that best fits the Maltese context, and then work will start being carried out in order to scientifically construct a weighing algorithm that truly reflects the complexity of the caseload.
- Legal Aid System
To further enhance the structure of the Legal Aid Malta Agency, discussions with the Industrial Relations Unit were successfully concluded in 2017. Legal Aid Malta now has its own Grading and Salary structure and can issue vacancy calls accordingly.
The revision of the retainer fees of legal aid lawyers and legal procurators increased by almost threefold. This enabled legal aid lawyers and legal procurators to give a better service to the legal aid clients.
Once the necessary recruitment has been undertaken, it is planned to embark on a reach out campaign promoting the services of Legal Aid Malta. It is envisaged that a Facebook page for Legal Aid Malta will also be opened shortly.
- Improvement of Data Collection and Data Analysis
In order to continue improving the quality of the justice system, as outlined by the indicators of the EU Justice Scoreboard, another batch of Court User Satisfaction surveys was carried out in 2017 on a different set of professional court users, covering mainly the same issues outlined in the 2016 survey.
Such analysis will enable the Ministry, the Judiciary and the Court Administration, to adopt a more strategic approach to enhancing the efficiency and quality of the justice system. Efficiency parameters such as the clearance rate, the disposition time and the number of pending cases for each Court in 2018 will be compared with the same parameters from previous years. It is expected that these reports will continue to further help inform policy.
- EU Structural Reform Support Programme (SRSP)
In October 2017, the MJCL submitted an application through the SRSP entitled ‘Enhancing efficiency and quality of the justice system through strategic Human Resource Management and technological support’.
The MJCL has been informed that the projects identified for 2018 have been selected. In March 2018, Malta was officially allocated €250K for the objectives falling within the first year of the project, and currently preliminary discussions are underway with both the Council of Europe and the SRSP team.
- Simplification and Modernisation of Procedures
Civil Law: Act 4 of 2016 entitled ‘Various Laws (Justice Reform) (Civil Procedure) (Amendment) Act’ passed through Parliament on 12th January 2016. This Act addresses various amendments that simplify civil procedure, thereby contributing legislatively to an increase in efficiency.
Commercial Law: The Government is committed to expedite procedures and clearance rates in this context vis-à-vis companies. Malta introduced legislation in connection with the novel concept of Second Chance for honest directors who have concurred with the law, which Second Chance concept was initially proposed in the EU Commission Communication entitled ‘The Entrepreneurship 2020 Action Plan: Reigniting the Entrepreneurial Spirit in Europe’. This legislation also introduces voluntary mediation procedures in insolvency, so that matters could be amicably resolved by professional mediators, if this can be attained by not less than 60% of the companies’ creditors. There are also legislative measures which are intended to facilitate company restructures.
In addition to this, amendments were proposed to the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) in order to provide for the setting up of a Commercial section within the Civil Courts. Act 1 of 2018 (also known as the Code of Organisation and Civil Procedure (Amendment) Act, 2018), inter alia provides for the establishment of a Commercial section of the Civil Court. The Civil Court (Commercial Section) shall be competent to assess applications falling within the competence of the Civil Court and which relate to matters regulated by the Companies Act. The Act shall come into force on the date when the Minister for Justice shall by Legal Notice appoint.
Moreover, amendments were also proposed to the Companies Act in order to provide for the recovery process for registered companies in financial difficulties. The amendments were adopted by means of Act XI of 2017 of the 21 March 2017.
Criminal Law: During 2016, the Government enacted Act 51 of 2016, entitled ‘Criminal Code (Amendment No. 2) Act’. Building on the recommendations of the Bonello Commission Report (of 30 November 2013) and transposing Directive 2013/48/EU, this Act provides for the rights of suspects and accused persons in criminal to have access to a lawyer, to have a third party informed of the deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. A pilot project is currently being conducted whereby prosecution in 1 hall of the Court of Magistrates is being conducted with the active involvement of lawyers as opposed to prosecution being conducted by police officers as was the practice for a number of years.
It is also worth noting that through Legal Notice 297 of 2017, Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order (EIO) in criminal matters, was transposed under national legislation (Subsidiary Legislation 9.25: European Investigation Order Regulation). The transposition of the EIO in itself continues to enhance the efficiency and effectiveness of judicial cooperation between Member States, further simplifying processes of mutual legal assistance in Criminal matters.
Constitutional Law: During 2016, the Government also adopted Act 44 of 2016,Constitutional Reforms (Justice Sector) Act. This Act seeks to promote the separation of powers between the executive and the judiciary through a new system of judicial appointments; enhance the accountability of the judiciary as a result of the extension of disciplinary proceedings in case of breach of ethics; and further uphold the independence of the judiciary through the introduction of an adequate pension scheme that honours the service of retired members of the judicial bench and their widows/ widowers.
In addition, this piece of legislation also makes provision for the setting up of 2 new Committees working under the remit of the Commission for the Administration of Justice, namely the sub-Committee on the appointment of members of the Judiciary and the sub-Committee on the discipline of the Judiciary. (This sub-Committee is completely made up of sitting members of the Judiciary which are elected by the members of the Judiciary itself.)
The overall aim of the Act is to increase transparency in the method of appointment of members of the Judiciary and to increase the accountability of the members of the Judiciary.
For obvious historical reasons, Malta’s Constitutional system draws more from the British tradition than from the legal traditions of other Member States and this is also reflected in the system for the making of certain important Constitutional appointments. There have been many developments over the years but the basic Constitutional procedure is one through which Judges and Magistrates are appointed by the President on the recommendation of the Prime Minister (Articles 96 and 100 of the Constitution of Malta).
The Judicial Appointments Committee established by Article 96A of the Constitution is, according to sub-Article 96A(2), presided by the Chief Justice “or, in his absence, by the judge who substitutes him in accordance with paragraph (d) of sub-article (3)”. The other members of the Committee are the Attorney General, the Auditor General, the Ombudsman and the President of the Chamber of Advocates.
It is clear that the Chief Justice is given a very strong role on the Committee by being its ex officio chairperson. Moreover, the Attorney General, although not forming part of the Judiciary, exercises a number of functions of a judicial nature, and with the required safeguards of independence, in the fields of public prosecution and of international co-operation in criminal matters.
The Attorney General, the Auditor General and the Ombudsman all enjoy constitutional security of tenure in their offices and the Auditor General and the Ombudsman are actually appointed by a two-thirds majority vote in Parliament whilst the Attorney General is appointed in the same manner as judges and is subject to the same requirements.
The President of the Chamber of Advocates is always an Advocate of long high standing and the Chamber of Advocates has a long track record of defence of the independence of the judiciary. The presence of the President of the Chamber of Advocates on the Judicial Appointments Committee is also in line with what is stated in paragraph 52 of the Explanatory Memorandum to Recommendation 2010/12 which refers specifically to “representatives of other legal professions” on such authorities.
Moreover, the assessment criteria adopted by the Committee have also been published in terms of Article 96A of the Constitution.
Being entrenched in the Constitution, this law required two-thirds of Parliament to be enacted, and enjoyed the support of all major stakeholders working in the Justice sector. This Act also attracted unanimity in the House and public endorsement by the Judiciary.
- Media and Defamation law
The Bill on Media and Defamation which is currently at Committee Stage in Parliament mainly aims at updating and re-writing the Maltese law on libel and slander in a manner which strengthens respect for the right to freedom of expression in a substantial manner. The right to freedom of expression is the basis of all media activity and is also one of the main pillars of the democratic system. Previous amendments to the Criminal Code (enacted by Act XXXVII of 2016 on the 19 July 2016) have already widened the freedom of artistic expression. The Bill on Media and Defamation will widen freedom of journalistic expression extensively. This Bill will introduce the following main changes:
1. For words to be defamatory these must be such as to cause, or be likely to cause, serious harm to a person’s reputation. This should discourage the filing of actions in libel and slander on the basis of statements which do not bring about serious consequences to a person’s reputation.
2. The defences to an action for defamation are being strengthened to be brought in line with the latest case law of the European Court of Human Rights (ECHR). At the same time, the privacy of individuals is going to continue being protected, so however that such protection will not extend to public figures where what is said has significant relevance to the individual’s public functions or to persons who although not being public figures are involved in incidents of public interest.
3. The list of publications which are privileged – since they report on events in respect of which there is a public interest for the public to be informed, and which leads to more journalistic freedom – is going to be extended.
4. The Media and Defamation Act will include no criminal offences and the few criminal offences currently found in the Press Act, which will be retained, will be transposed in the Criminal Code. A large number of criminal offences which interfere with freedom of expression and which are currently found in the Criminal Code are to be repealed.
5. The maximum amount of damages which can be awarded in an action for libel is going to remain the same as provided for at present under the Press Act (€ 11,640).
6. Defamation by words and not by publication is not going to remain a criminal offence but will give rise to a civil action where the maximum amount of damages awardable will be € 5,000.
7. In the hearing of causes for libel and slander, a system of preliminary hearing will be introduced whereby the Court will consider whether a case can be decided summarily. Alternative means of dispute resolution and settlement in this field – such as through explanatory statements, apology or mediation – are encouraged.
8. In establishing the amount of damages, the Court will also be obliged to take into account the effect which the payment of the damages will have on the person ordered to pay. This measure aims at better safeguarding the principle of proportionality.
9. Editors of websites will have additional defences at their disposal which are different to those available to editors of the written press and to broadcasters and this due to the specific nature of websites which receive comments from the public.
10. When a statement has already been published or when the same statement is published several times, specific rules will regulate the time barring of the action and the possibility to file a collective action in respect of the same statement.
11. The right of reply will be retained but failure to respect this right will now give rise to a civil rather than a criminal remedy.
12. A new article will make provision in respect of the defamation of deceased persons when such a defamation has an effect on living persons.
13. Registration of editors, other than editors of broadcasting services, and publishers will be on a voluntary basis and will not apply to editors and publishers of websites. The possibility of having the Media Register administered by the media itself is also provided for.
14. Due to the sensitive nature of regulations in the media field, regulations enacted under the Act will require prior approval by parliamentary resolution before they can come into force.
15. The protection of sources will apply to every editor, publisher, author, operator of a website or broadcaster.
16. The Code of Organisation and Civil Procedure will be amended to prohibit the issue of precautionary warrants in respect of actions for defamation.
17. The Electronic Communications Regulation Act will be amended so that merely defamatory statements written or spoken on a website and which give rise to an action under the new law will no longer constitute an offence against the Electronic Communications Regulation Act.
18. Actions for criminal libel which will be pending at the time when the new Act comes into force will be discontinued.
Act 2 of 2018 (Act amending the Public Administration Act) provides for pre-appointment parliamentary hearings (to be undertaken by the Standing Committee on Public Appointments) with respect to important public appointments to Ambassadorships and to leading roles in regulatory authorities.
This Committee shall consist of 7 members appointed by the HoR of whom 4 shall be appointed by the Government, 1 of whom shall be appointed as Chairperson, and the other 3 shall be appointed by the Opposition.
Through this Act, “(w)here a Minister...intends to nominate a person to be an Ambassador or High Commissioner or other principal representative of Malta in any other country, not being a person who is selected from amongst public officers in the service of the Ministry for Foreign Affairs or a person who already holds the post of Ambassador or High Commissioner or other principal representative of Malta in any other country,...or to hold a post in a Government Agency, Entity, Board or Commission or to head any other institution established by law...then unless the nomination is in respect of a reappointment, the Minister shall at least twenty days before he intends that the appointment should become effective give notice of the proposed appointment to the Chairperson of the Standing Committee on Public Appointments.”
- New Law Court in Gozo
The objective behind this measure is to address the space and accessibility problems within the Gozo Law Courts, thus making the system more efficient.
A detailed geo-technical analysis of the chosen site revealed a natural terrain fault and this led to a rethinking of the location of this project. In fact, a public consultation process on the new proposed site was carried out. The architect is finalising the project brief and plans whilst geological studies are currently underway. When completed, the architect will commence consultation with the Planning Authority (PA) before an application for a PA permit is submitted.