Rule of Law: Justice

Strengthening Access to Justice for Human Rights Protection

In January 2021 aditus began working on the project Strengthening Access to Justice for Improved Human Rights Protection which has as its objective improving access to justice for individuals wishing to strengthen their human rights protection in those instances when they feel that they have been violated. This project is supported by the Active Citizens Fund (ACF) in Malta established under the specific Programme Area for Civil Society part of the EEA Financial Mechanism 2014-2021.

In several of our earlier projects, alone and also with several other NGO colleagues, we identified institutional obstacles to effective to justice for human rights protection. These obstacles have also been identified by several esteemed reports and research, including by the Venice Commission, the European Parliament, the European Commission and in the Vanni Bonello report on Malta’s justice system.

Whilst Malta has a relatively strong human rights regime that seeks to protect a long list of fundamental human rights, the practical protection offered to persons whose rights have been violated or might be violated is rather weak. Within the ambit of this project, we are looking at key publications and reports and the recommendations contained within them.

Recent Changes in the Maltese system

We cannot discuss rule of law within the justice system without mentioning the recent changes carried out further to the Venice Commission report on Malta. The reform process in carrying out these changes and the lackof consultation has already been discussed in another blogpost plublished last year. The Venice Commission highlighted that the Constitution allowed for the Prime Minister to retain the majority of the power, while other important actors (including the President, Parliament, the Cabinet of Ministers, the Judiciary, the Ombudsman etc) were not granted sufficient power to allow for checks and balances necessary for separation of powers.

The 6 legislative changes carried out by the Maltese government in 2020 and subect to another Venice Commission opinion were the following:

  • Reforms relating to the judicial review of decisions not to prosecute;
  • Amendments to laws regulating the Office of the Ombudsman;
  • Constitutional amendments relating to the appointment of the judiciary;
  • Constitutional amendments relating to the appointment of the President;
  • Constitutional and other amendments relating to the removal from office of the judiciary; and
  • Reforms relating to the appointments to the Permanent Commission Against Corruption.

Outstanding issues

The length of proceedings remains a problem in both civil and criminal cases. The length of proceedings is amongst the longest in the EU. These raise serious issues both for the rights of the general public in securing their rights, but also more worryingly for defendants and victims of crime. Malta also has the lowest number of judges per capita.

In 2018, the Maltese annual budget allocated to legal aid was reported to be €304,137, whilst in comparison that of public prosecution €2,656,005. Access to legal aid remains limited, specifically in civil cases where legal aid is only granted to persons who have (i) a probabilis causa litigandi and (ii) an income which does not not exceed the national minimum wage and total assets did not exceed €6,988.12.

Several Acts of Parliament grant individual Ministers the authority to appoint members of quasi-judicial bodies, committees, commissions and similar entities, these having the mandate to decide on appeals or applications presented to them by any person. Although the basic principles of natural justice apply to all deciding boards and quasi-judicial tribunals, there is no conformity or uniformity on the composition
of such bodies, on their basic rules of procedure and on the remedies available after the decision is taken.

The Maltese Courts have through their jurisprudence enshrined the principle that Constitutional Court judgements, including when the Constitutional Court declares that a specific law violates the Constitution or the European Convention, do not have erga omnes application. This principle enshrined by our Constitutional Courts goes against the principle of Article 6 of the Constitution, which proclaims the supremacy of the Constitution and that any law to the extent of its inconsistency with the Constitution, is null and void.

There is still a dire need for improvements in the use of IT tools in local Courts. E-filings are not available, except for filings in the Small Claims Tribunal. The public can access the acts of cases in relation to civil proceedings, but not criminal. Although we understand issues of data protection for criminal cases, we are not aware of any possibility of legal professionals being able to view the acts of criminal cases online.

These are just some of the systematic issues that this project will aim at addressing in the two years of its implementation.

For any information or queries email [email protected]


09/12/2019