Maltese Judicial System

Maltese Judicial System

PROSECUTORIAL AND JUDICIAL PROCESS

1. Rights of the Accused.

* Rights of the accused. The accused is
guaranteed a fair hearing by the Criminal Code,
the Constitution, and the European Convention Act
of 1987. Briefly, this includes the basic notions
of due process as laid out in the European
Convention on Human Rights and the right of
individual petition to the Commission of the
European Court of Human Rights.
The nature of the charge determines the court
by which the accused is tried. In certain cases,
the accused is tried by the Magistrates Court
presided over by a Magistrate only. There are
other cases where the accused can choose to be
tried by a jury before the Criminal Court, and
others where a trial by jury is proscribed. At
the request of the accused, there may be a trial
by judge without a jury. In all instances, the
accused has a right of appeal.
The accused has a right to plead guilty, but
may not do so to a lesser offense unless the
prosecution concurs. The accused can call
witnesses and cross-examine those of the
prosecution. Additionally, if the accused is not
testifying, s/he cannot be the subject of adverse
comments by the prosecution. The accused also has
a right to be given sufficient time to prepare a
defense. Normally, trials are held in public,
although some legal exceptions do exist.

* Assistance to the accused. The accused have a
right to be assisted by counsel of their own
choice and if they cannot afford it, are entitled
to have a counsel assigned by the presiding judge
or magistrate at public expense. A lawyer who has
been so assigned to defend an accused must have
just cause for refusing the appointment.

2. Procedures.

* Preparatory procedures for bringing a suspect to
trial. A trial is normally preceded by a police
investigation, followed by arrest and arraignment
in court. Arraignment cannot be delayed more than
48 hours after arrest. In certain instances,
however, the law provides for an inquiry to be
carried out by a Magistrate whose functions
include the collecting of evidence.

* Official who conducts prosecution. Prosecution
before the Magistrates Court is conducted by a
Police Inspector. An attorney from the Attorney
General’s office prosecutes before the Criminal
Court and the Court of Criminal Appeals.

* Alternatives to trial. Except in those cases
where the charge can be waived by the complainant
before the commencement of the trial, there are no
alternatives to going to trial. Plea-bargaining
is not provided for in the law. However, in
practice, it is sometimes resorted to although the
court is not bound by it.

* Proportion of prosecuted cases going to trial.
There are no statistics available on the
proportion of prosecuted cases which actually go
to trial. In fact, Maltese Court Statistics do
not delineate how most cases are resolved. In
major criminal offenses, however, it is very rare
for a guilty plea to be entered.

* Pre-trial incarceration conditions. Information
not available.

* Bail Procedure. It is the responsibility of the
accused to petition for bail, which can be refused
if it is proved by the prosecution that there are
reasons to believe that the accused would likely
abscond from the jurisdiction or tamper with the
evidence of the prosecution.
The granting and/or withholding of bail is
regulated by the Criminal Code. Following a
recent judgment of the Constitutional Court, the
Code was amended making it mandatory on the courts
to grant bail in each case where pre-trial
incarceration is no longer required, or when a
statutory fixed time limit has expired without the
trial having commenced.
When an application for bail is filed by the
accused, the court is bound to serve a copy of the
application to the Attorney General on the same
day of filing and must schedule a hearing without
delay. If the application for bail is denied,
there is no right of appeal but a fresh
application may be filed. If bail is at any time
forfeited, then the court is precluded from
providing subsequent bail.

* Proportion of pre-trial offenders incarcerated.
In 1991, there were 337 inmates awaiting trial.
That year, approximately 60% of the prison
population were in preventive detention. In 1990,
26 of 90 foreign nationals were awaiting trial.

JUDICIAL SYSTEM

1. Administration.

The Courts of Civil Jurisdiction in Malta are
divided into two separate tiers, the Superior
Courts and the Inferior Courts. The Superior
Courts include the Constitutional Court, the Court
of Appeal, the Civil Court, and the Commercial
Court. The Inferior Courts include the Court of
Magistrates on the island of Malta, and b) the
Court of Magistrates on the island of Gozo.
The Courts of Criminal Jurisdiction are also
divided into two separate tiers, the Superior
Courts and the Inferior Courts. All Courts of
Criminal Judicature are established by the
Criminal Code. The Superior Courts include the
Court of Criminal Appeal and the Criminal Court.
The Inferior Courts include the Court of
Magistrates on the island Malta and the Court of
Magistrates on the island Gozo.

2. Special Courts.

The Juvenile Court represents the most
significant special court. It is regulated by the
Court Act of 1980 and is presided over by one
magistrate. However, in its proceedings, the
Juvenile Court is assisted by two persons, one of
whom has to be female. This court deals with all
criminal offenses allegedly committed by an
individual under the age of sixteen.

3. Judges.

* Number of judges. At the Superior Courts level
there are 14 judges and the Chief Justice who acts
as the President of the Constitutional Court and
of the Court of Appeal. At the Inferior Courts
level, there are 14 Magistrates, one of whom is
female.

* Appointment and qualifications. The appointment
of Judges and Magistrates is regulated by the
Constitution. Judges are appointed by the
President of the Republic with the advice of the
Prime Minister from advocates who have had at
least 12 years practice at the Bar or who have
served as Magistrates.
Magistrates are appointed by the President of
the Republic from advocates who have had at least
7 years practice at the Bar. Judges and
Magistrates are not specifically trained to become
members of the Judiciary.
According to an amendment effective January
1994, the Prime Minister will seek the advice of a
newly created Council for the Administration of
Justice before making any judicial appointments.
This Council is composed of the President of the
Republic, the Chief Justice, two judges, two
Magistrates, the Attorney General, the President
of the Chamber of Advocates, a representative of
the Government and a representative of the
Opposition.

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • Maltese Criminal Justice System

Further Reading

  • Cole, George F., S. J. Frankowski, and M. G. Gertz, (1987) Major Criminal Justice Systems. Beverly Hills: Sage.
  • David, R. and J. E. Brierley (1968) Major Legal Systems of the World Today. London: Free Press.
  • Fairchild, E. (1993), Comparative criminal justice systems. Belmont, CA: Wadsworth.
  • Feeley, Malcolm M. (1973), “Two models of the criminal justice system”. Law and Society Review, 7(3): 407-425.

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