‘Time to challenge court practices’ – Chamber of Advocates

The President of the Chamber of Advocates Louis de Gabriele has told The Shift “it’s time to challenge current working practices” to move courts to a more efficient system of filings and hearings conducted online.

The pressure to shift to some form of online hearings has intensified this week after Judge Lawrence (Wenzu) Mintoff ruled that the coronavirus-related suspension of the compilation of evidence against those charged with serious crimes is in breach of their human rights.

Mintoff made the ruling in a judgment on a constitutional lawsuit filed by Yorgen Fenech, accused of masterminding the assassination of journalist Daphne Caruana Galizia. The compilation of evidence resumed today, amid complaints that justice had been suspended. The call for a revision of work practices to adapt to current needs was also taken up by the Opposition last week.

The Chamber of Advocates published two reports on the subject, the latest one consisting of 16 pages of recommendations mostly focused on civil courts. In its reports, the Chamber makes the case for a new normal – which will extend beyond the lifting of coronavirus restrictions – that will see extensive court process move online for greater efficiency.

This was put into effect to a small extent a few years ago with the possibility of making filings of claims, replies, and counterclaims online for cases in the Small Claims Tribunal. The Tribunal hears causes with a value of up to €5,000, and claims online can be filed by claimants or parties to the suit themselves, without using a lawyer, on the eCourts website.

Asked about the success of this system, de Gabriele said that “it hasn’t been very popular. It’s a question of mentality and culture. If you only keep the online system limited to small claims, it will not work.”

“If you expand it to all courts, then within a few years it will become the only system that works. But you cannot leave it as optional.”

The aim, he says, is to make an online court system “coherent and comprehensive” but to start with gradual, steady steps. The Chamber has had discussions with judges and identified 10 cases in which the oral pleadings or exposition will be made in online video conferencing.

The range of recommendations in the Chamber’s report – titled ‘Reopening of the Courts after COVID-19’ – show how far we have to go.

One of the recommendations, for example, is for litigants to be summoned to court by appointments staggered throughout the day, with each hearing set for 30 minutes, instead of the current tendency of having everyone with a court session on the day summoned at 9am and then having people wait to be called.

Another is to be able to file notes or documents online instead of having to appear in court only to present a written document.

The Chamber is also calling for a greater range of written submissions. De Gabriele said: “Whatever can be in writing, let’s do it in writing and upload it to an online system instead of having to appear in front of a judge.”

Yet the Chamber is being cautious when it comes to testimonies. The idea is that people testifying in the courtroom would enable the court actors – the lawyers, the judge – to assess the testifier’s body language and demeanour. At present, testifying via video link is limited to those cases in which those summoned to testify cannot attend court.

“We have to learn new skills with assessing body language in online video transmission,” de Gabriele said. “We will get there, but we should start with the basics.”

The Chamber has also recommended making online hearings accessible to everyone to preserve the principle of open courts.

Retired human rights judge Giovanni Bonello made a similar call last October, when he said that all hearings of the Constitutional Courts should be streamed live.