Recently the Minister for Justice expressed his frustration for being given a hard time from some quarters in his efforts to reduce the appeals caseload. He has hinted at applying more resources to clear the backlog.

Typically, in Malta one has to wait three years to have a case heard before the Court of Appeal, composed of a panel of three judges, in appeals from the superior courts, and a couple of years before the same court composed of one judge hearing appeals from inferior courts, small claims tribunals, the Rent Regulation Board and a number of administrative tribunals.

In Europe, there is a north-south divide in appeals disposal: three toseven months in Norway and up to six years in Italy.

England stands out at one end of the spectrum as a jurisdiction which discourages appeals. This it does by imposing strict time limits to appeal, the need of permission to appeal, restricting the introduction of new evidence, and a reluctance to interfere with the discretion of the court of first instance in the evaluation of evidence.

At the other end of the spectrum is Slovenia where the right to appeal is a constitutional right. This translates into courts of appeal considering themselves as courts of cassation.

Various judicial decisions, both on points of law and of fact, are appealable, with the higher court quashing the judgements of inferior courts and remitting them to the latter for reconsideration. Procedural reforms in 2004 and 2008 to address this deficiency have been circumvented in practice.

An unfettered right to appeal favours the debtor who wants to buy time, as well as the obstinate litigant who has no right but wants to hassle or arm-twist his opponent

A similar situation exists in Croatia. Another bad apple is Italy, where apparently radical reforms such as the ‘filtering’ of appeals and restrictions on the production of new evidence in the appeal stage has proved to be of little effect in practice, and has been the subject of harsh criticism both by jurists and legal practitioners.

More than the procedural norms in place, it must be admitted that it is the culture within each particular jurisdiction that determines the efficiency or otherwise of the appeals system. And embedded practices in the conservative legal profession are the hardest nuts of all to crack.

Malta is a case in point. Excepting the need to obtain leave to appeal from definitive judgements (leave to appeal is necessary from certain partial decisions) the appeals proceedings are uncannily similar to the English system, from which they were partly inspired during the early colonial period when the procedural code was drafted: the introduction of new evidence is severely restricted; there is a reluctance to interfere with the discretion of the court of first instance in the evaluation of evidence.

Nevertheless, in sharp contrast to England, there is a high rate of appeals from first instance courts and tribunals.

According to the European Court of Human Rights (ECtHR) in Strasbourg, the right to appeal is not a fundamental human right. Not so however the right to a fair and timely protection of civil rights and obligations.

This lies at the core of Article 6 of the European Convention on Human Rights, which makes it mandatory to have a fair trial within a reasonable time.

What is a reasonable time for an appeal to be decided depends upon circumstances; the time spent to obtain the judgement of first instance has also to be taken into account. An approximate statistical analysis of the ECtHR cases points to a period of two years as being the threshold in this regard.

The impulse to have as nearly a perfect judgement as is humanly possible can only be satisfied by the availability of an unlimited array of means of impugning judgements. But such a high level of quality control is impossible to achieve within a limited time-frame.

The ideal system of appeal is the Aristotelian golden mean between quality and timely delivery of a final and binding judgement. This is by no means an easy task. Economic considerations have also to be factored in.

An unfettered right to appeal favours the debtor who wants to buy time, as well as the obstinate litigant who has no right but wants to hassle or arm-twist his opponent. Lengthy proceedings deter international investors who seek to put their money in jurisdictions which provide an efficient mechanism of legal redress.

On the other hand, making appeals unduly expensive would deter the poor litigant who has a good reason to impugn the first instance judgement.

The State’s resources, both human and financial, largely extracted from the taxpayer, have their limits and therefore have to be rationed between society’s various needs of which justice is just one. This means that appeals must be limited. The perennial question is: how?

In my opinion the ‘finality’ of judgements of first instance should be reinforced. This can be achieved by various means; among these, the feasibility or otherwise of the following should be carefully diagnosed:

These judgements should be provisionally enforceable, notwithstanding an appeal, except where the court delivering the judgement – exceptionally – decides otherwise due to the special circumstances of the case. As the law stands, judgements of first instance are not enforceable unless, on the demand of the interested party, such judgment has been declared by the court to be provisionally enforceable;

The guarantee for the appeal court expenses (malleverija) should be deposited immediately upon the filing of the application for appeal and not at a later stage;

Appeal from points of fact should be severely restricted;

A statistical study on the rate of appeal from decisions of first instance, subdivided into categories such as the subject matter, the type of court or tribunal, the individual judges, magistrates and other adjudicators sitting in courts and other tribunals of first instance; the rate of reversal by the court of appeal, the reasons for such reversals;

Finally, the economic impact of appeals both on individual wealth transfer between litigants as well as on a macro-level should be assessed by competent economists.

Grazio Mercieca is a court attorney.