Former Attorney General Anthony Borg Barthet believes that 10 years after EU membership, Maltese society is not sufficiently aware of the legal rights it acquired under EU law.

This was not only the case with citizens but also applied to the legal profession, the University of Malta as well as the judiciary, he said.

The 67-year-old lawyer, who has been a judge at the European Court of Justice in Luxembourg since 2004, spoke to Times of Malta ahead of a conference tomorrow focusing on the cooperation between the Maltese courts and the ECJ.

Dr Borg Barthet said that in many instances EU law was not being invoked. People should be more proactive and not expect the European Commission to take action in every circumstance.

We are still not focusing on the everyday life aspects of European law... like consumer law

He attributed this lacuna in part to the university law course. “We are still not focusing on the everyday life aspects of European law on matters like consumer law.”

This was in sharp contrast with Eastern European countries which immediately took European law aboard, whereas western European countries like the UK and Sweden took much longer to adapt.

“The legal profession should enquire more about the European aspects of our laws.”

One fundamental principle of European law was that any punishment handed down by a court must be proportional to the offence committed, he said.

“From my experience as a prosecutor I can assure you that Maltese courts at times have given draconian punishments.”

He argues that if neither the defence counsel nor the judge presiding the case were aware of this principle, there was the risk of an unfair sentence.

“I am not entirely convinced that such aspects are being explored enough, especially by lawyers.”

Asked about the judicial review under way, Dr Borg Barthet was reluctant to make a judgement, saying he had not delved deeply enough into the proposals to take an authoritative stand.

“I would have tackled the reform by coming up with an ideal model and then trying to make the judicial system as close to it as possible. My concern is that the reform is only touching the surface but is not proposing radical changes to the procedure itself.

“No court is ideal, but in Malta we are still documenting the entire process in writing, with the possibility of documents being lost or even manipulated.”

Apart from the management side, he suggests having clear rules of procedure for the judiciary to avoid certain grey areas which tend to bog down the legal proceedings.

Undoubtedly, the major issue concerns the delays, with Malta consistently placing bottom of the EU justice scoreboard.

Calling it “judgment by attrition”, he said this was denting Malta’s chances of attracting foreign investment as no business would want to put money into a country where they might have to wait for years to recoup it in case of a legal dispute.

“Most of the time cases take so long due to a neverending list of witnesses whose testimony ultimately has no bearing on the merits of the case itself.”

Such evidence could be verified without the need to be summoned to court, he suggested.

Having been Attorney General for 15 years, Dr Borg Barthet believes that if the government seeks legal advice from the AG’s office, and this is of a controversial nature, then it ought to be published.

The AG’s office was recently at the heart of political exchanges over a number of issues such as the smart meter scam amnesty, the citizenship programme and the John Dalli case.

In such cases the government should publish the advice given to it by the AG as well as the background to which the request was made so that the public may have the entire picture, he said.

Asked about his job in Luxembourg, Dr Borg Barthet jokingly remarked that he considered himself to be in “semi-retirement” as he had the time to enjoy weekends and lead a normal life.

“In Malta, no matter how hard I used to work, it seemed that I never managed to cope,” he said, adding that the AG’s office had always been short of staff.

“I express my sympathy to my successors as with EU accession the workload has increased but the resources have not been augmented proportionally.”

From a legal perspective, the ECJ is quite unique because cases cannot be appealed. But the fact that decisions are taken by a group of judges took off some of the pressure, Dr Borg Barthet said.

“You still have to face delicate moments, especially in the rare circumstances when there is a tie and your vote is the decisive one.” However, the fact that the ECJ gives one judgment, and not dissenting ones, reduced the likelihood of having very polarised views on the judging panel

“In some cases I was the rapporteur of a case in which my opinion was not in line with the final judgment and in that case I would try to make a mild reference to my personal view as well, so as to have the broadest representation of all views.”

With his term expiring in 2018, at 71, Dr Borg Barthet is planning to keep active, possibly by involving himself in a philanthropic organisation.

“One thing is certain. I will not be writing my memoirs as one cannot be objective about oneself. Besides, some aspects are too confidential to divulge.”

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