Malta Judiciary and Law Overview
The legal system is based on civil (Roman) law, which eventually progressed to the Code de Rohan, Code Napoleon with Influences from Italian Civil and Penal Law. However, English Common Law is also a source of Malta Judiciary and Law, particularly in commercial, corporate and public Law, with the judiciary often making references to English Common Law judgments on matters of interpretation.
In 1987 Malta adopted the European Convention on Human Rights as part of its law. Since then, Maltese citizens have the right of access to the European Court of Human Rights in Strasbourg. This Court is composed of judges from the member States of the Council of Europe, including Malta.
As of 1995, in line with the country’s ambition to join the EU, Maltese Law has transposed EU Directives.
The Courts of Justice cater for all civil and criminal proceedings. There are also ten (10) Local Tribunals in Malta and Gozo which deal with depenalised offences.
The Maltese Courts include:
- The Constitutional Court
- The Court of Appeal
- The Court of Criminal Appeal
- The Criminal Court
- The Civil Court
- The Magistrates’ Court
- The Gozo Courts
- The Small Claims Tribunal
- The European Small Claims Procedure
- Local Tribunals
- The Juvenile Court
- The Administrative Review Tribunal
- The pre-trial system
- Reference to the Court of Justice of the European Communities
The Constitutional Court
The jurisdiction of the Constitutional Court, composed of three (3) judges. It is appellate in cases involving alleged violations of human rights, the interpretation of the Constitution and invalidity of laws. It has original jurisdiction to decide questions as to membership of the House of Representatives and any reference made to it relating to voting for election of members of the House of Representatives.
The Court of appeal
This Court is composed of three judges when it hears appeals from the judgements of the Civil Court, and of one judge when it hears appeals from the Court of Magistrates in its civil jurisdiction. An appeal also lies to the Court of Appeal from decisions of a number of administrative tribunals, mostly on points of law.
The Court of Criminal Appeal
The Court consists of three (3) judges and hears appeals from persons convicted by the Criminal Court. A person convicted on indictment may appeal against his conviction in all cases or against the sentence passed on his conviction unless the sentence is one fixed by law. An appeal can never result in a sentence of greater severity. An accused person may also appeal against a verdict of not guilty on the ground of insanity. In certain cases the Court may also order a re-trial. The Attorney General, who is the prosecutor before the Criminal Court, cannot appeal from a verdict of acquittal or, in certain cases, against the sentence passed. The Court also hears appeals by the accused and by the Attorney General from decisions on preliminary pleas and from decisions of pleas regarding the admissibility of evidence.
This Court, when formed of one judge, hears appeals from judgements delivered by the Court of Magistrates in its criminal jurisdiction. In this case the person convicted can also appeal in all cases, whether against conviction or against the sentence passed. The Attorney General’s right of appeal from these judgements is limited in most cases to appeals on points of law, although increasingly, particular laws are giving a general right of appeal to the Attorney General in connection with some offences.
The Criminal Court
In this Court the judge sits with a jury of nine persons to try, on indictment, offences exceeding the competence of the Court of Magistrates as a Court of Criminal Judicature. This court may, in certain exceptional cases, sit without a jury.
The Civil Court
There shall be three sections in the Civil Court to which shall be assigned the category of cases. The sections of the Civil Court shall be the Family Section, the Voluntary Jurisdiction Section (previously known as the Second Hall) and the a general jurisdiction section to be styled the First Hall of the Civil Court. The First Hall takes cognisance of all causes of a civil and commercial nature exceeding the jurisdiction of the Courts of Magistrates.
To the Civil Court (Family Section) shall be assigned those cases falling within the competence of the Civil Court and which relate to matters regulated by Titles I, II and IV of Book First of the Civil Code; The Maintenance Orders (Facilities for Enforcement) Ordinance; The Maintenance Ordinance (Reciprocal Enforcement) Act; The Marriage Act and The Child Abduction and Child Custody Act.
To the Civil Court (Voluntary Jurisdiction Section) shall be assigned applications falling within the competence of the Civil Court and which relate to matters regulated by Titles III, V, VI and VII of the Book First of the Civil Code and Part II of Book Second of the Code of Organisation and Civil Procedure. These areas include authority to proceed the tutorship of minors, adoption, the interdiction and incapacitation of persons, the opening of successions and the confirmation of testamentary executors.
One Judge presides in all three Sections.
The Magistrates’ Courts
This Court, which is composed of one Magistrate, exercises both a civil and a criminal jurisdiction.
The Court of Magistrates, in civil matters, has an inferior jurisdiction of first instance, limited to claims exceeding €3,494.06 but not exceeding €23,323. In criminal matters, the Court has a two-fold jurisdiction, namely, as a court of criminal judicature for the trial of offences which fall within its jurisdiction, and as a court of inquiry in respect of offences which fall within the jurisdiction of a higher tribunal. In the second case, it conducts the preliminary inquiry in respect of indictable offences and transmits the relative record to the Attorney General. The Attorney General may send for trial by this court any person charged with a crime punishable with imprisonment for a term exceeding six months but not exceeding ten years if there is no objection on the part of such person. The court asks the accused whether he objects to his case being dealt with summarily and if the accused does not object, the court becomes competent to try the accused and proceeds to give judgement.
The Gozo Courts
The Court of Magistrates for Gozo in civil matters, has a two-fold Jurisdiction – an inferior jurisdiction comparable to that exercised by its counterpart Court in Malta, and a superior jurisdiction, both civil and commercial, in respect of causes which in Malta are cognisable by the First Hall of the Civil Court. Within the limits of its territorial jurisdiction, this Court has also the powers of a Court of voluntary jurisdiction.
Small Claims Tribunal
The Small Claims Tribunal is presided by an adjudicator who decides cases on principles of equity according to law. Adjudicators are appointed from amongst advocates for a term of five years. Adjudicators decide cases brought before them without delay. The aim is to have claims not exceeding the sum of €3,494.06 decided summarily. Sittings of this Tribunal are held in Malta or Gozo. An appeal from the decision of the Tribunal lies to the Court of Appeal on specific cases listed in the Act establishing the Tribunal.
The European Small Claims Procedure
The European Small Claims Procedure Regulation – Regulation (EC) No 861/2007 established a European Small Claims Procedure. The provisions of this Regulation came into force on the 1st January 2009. The aim of this Regulation is to simplify and speed up the settlement of cross-border litigation on small claims. It applies to civil and commercial matters where the claim does not exceed € 2,000. This procedure is a written procedure. The claimant shall commence this procedure by filling in a standard claim Form A including a description of evidence supporting the claim. After receiving the properly filled claim form the court or tribunal shall fill in Part 1 of the standard answer Form C. A copy of the claim shall be served on the defendant and shall be dispatched within 14 days. The defendant shall submit his response within 30 days of service of the claim. The claim form shall be submitted in the language or one of the languages of the court or tribunal.
A number of minor infringements of the law such as minor traffic offences (parking violations, etc.), illegal disposal of litter, tenancy, etc., are penalised and are heard by Commissioners of Justice in Local Tribunals situated in various localities. The Commissioners are selected from among persons holding a law degree and given a three year appointment. As the offences have been depenalised the case may be decided even in the absence of the accused. Appeals are only possible on points of law.
The Juvenile Court
The Juvenile Court consists of a Magistrate, as Chairman, and two members. Sittings are held outside Valletta, namely in Sta. Venera. The Courts hears charges against, and holds other proceedings relating to minors under the age of 16 years, and may also issue Care Orders in their regard. Given the confidential nature of such sittings, attendance to hearings is restricted to persons mentioned in the law establishing the Court.
The Administrative Review Tribunal
On the 1st January 2009 (L.N. 345 of 2008) the provisions of Chapter 490 of the Laws of Malta, the Administrative Justice Act, came into force. The aim of this act is to provide for Administrative Justice in Malta. This act provides for the setting up of the Administrative Review Tribunal, its constitution, the Chairman, sections, panels of assistants, registry, procedure and appeals from decisions of the Administrative Review Tribunal. The Administrative Review Tribunal is an independent and impartial tribunal applying the principles of good administrative behaviour.
This Tribunal is set up for the purpose of reviewing administrative acts. It consists of a Chairperson appointed for a period of four years by the President of Malta acting on advice of the Prime Minister. The Tribunal is assisted by two assistants and holds sittings in Malta and Gozo.
Administrative acts include the issuing by the public administration i.e. the government of Malta including its Ministries and departments, local authorities and any body corporate established by law of any order, licence, permit, warrant, authorisation, concession, decision or refusal to any demand of a member of the public.
Any party to the proceedings before the Tribunal who feels aggrieved by a decision of the said Tribunal may appeal to the Court of Appeal sitting either in its superior or its inferior jurisdiction.
The pre-trial system
When a cause has been assigned to a Judge, he shall as soon as practicable give such orders as may be conducive to an expeditious conclusion of the written pleadings. After the written pleadings have been concluded, the judge may give such orders as may be conducive to the proper conduct of the pre-trial or trial hearing. Unless a cause is appointed for a trial hearing, it shall be appointed for a pre-trial hearing. A cause shall be appointed for a pre-trial hearing not later than two months after the conclusion of the written pleadings.
The purpose of the pre-trial hearing, which is presided by a Judge or a judicial assistant acting under the guidance and directives of the Judge, is among others to identify the factual and legal issues involved in the case, examine the possibility of an agreed settlement or application for conciliation and mediation process before proceeding further with the cause and to identify the witnesses and documents necessary for determining the cause. The pre-trial procedure does not apply to the Civil Court (Family Section), the Court of Magistrates (Malta) and to the Court of Magistrates (Gozo) in its inferior jurisdiction
Reference to the Court of Justice of the European Communities
Article 234 of the Treaty establishing the European Community states that the Court of Justice of the European Communities shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaty, the validity and interpretation of acts of the institutions of the Community and of the ECB and the interpretation of the statutes of bodies established by and act of the European Council. Where such a question is raised before any court or tribunal of a Member State, the court or tribunal may, if it considers that a decision in the question is necessary to enable it to give judgement, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, the Court or tribunal shall bring the matter before the Court of Justice. Legal Notice 279 of 2008 states that it shall be the responsibility of the court, not the parties to settle the terms of the reference to the Court of Justice of the European Communities. The reference shall identify the question to which the Maltese court seeks an answer. The referring court shall in a single document scheduled to the order identify the parties and summarise the nature and history of the proceedings, summarise the salient facts, indicating whether these are proved, admitted or assumed, make reference to the rules of national law (substantive and procedural) relevant to the dispute, summarise the contentions of the parties as far as relevant, explain why a ruling of the Court of Justice of the European Communities is sought, identifying the provisions of Community law whose effect is in issue and formulate without avoidable complexity the questions to which an answer is requested.
Source – Ministry of Justice and Home Affairs