Legal experts slam “objectionable” new law on court judgments



Two jurists condemned as “totally reprehensible” a new legal notice which entered into force on November 23, which gives the director general of the court complete discretion as to the online publication of court decisions.

Former European Court of Human Rights judge Giovanni Bonello called Legal Opinion 456 “reprehensible”. He told The Shift it was “reprehensible for more than one reason.”

One of the main questionable aspects of the legal announcement is that the Director General is a government employee who reports directly to the Department of Justice, which raises independence concerns.

The legal opinion was originally drafted three years ago, but sat dormant until quietly passed last week.

In its formulation, the legislation refers to a concept known as the ‘right to be forgotten’, which basically refers to the right of an individual to request an entity to remove their personal data from its records in specific circumstances.

“This so-called right to be forgotten was instituted by the European Court of Justice in a ruling in May 2014. This ruling, to my knowledge, only referred to the right of individuals to request commercial websites with search engines like Google and YouTube to remove personal data relating to that individual, ”Bonello said.

“It has absolutely nothing to do with one of the branches of state (the courts) which censors and manipulates its official records, publishes some and conceals others. Relying on a misunderstood and non-existent “right to be forgotten” to censor official documents is completely reprehensible, ”he added.

Bonello also touched on the fact that there are no criteria listed in terms of what the chief executive of the court should take into account when evaluating decisions whether or not to publish a court judgment online.

“The Legal Notice allows the general manager to be totally arbitrary in what he decides. This too is highly reprehensible. Arbitrary power is the usher of tyranny. We must not forget that the Constitution and the European Convention on Human Rights require, as a precondition for a fair trial, that all stages of the trial be public, including the trial, ”Bonello said.

This, Bonello added, was essential to “protect the parties from covert maneuvers and keep the judiciary on their toes.”

Lawyer Michael Zammit Maempel echoed similar concerns, going further by saying that once the courts become secret “there is no longer any control over what happens” within their structures.

“The implication of all of this is that, on the one hand, we have FIAU, Moneyval and the FATF asking professionals like me to make sure that we check and double-check the backgrounds of anyone who takes the step to. the door to their office and the other, the Justice Department makes this process more opaque, ”said Zammit Maempel, referring to background checks of potential clients.

“Checking the judgments online would have been a way to do this work transparently because it would have been available. Now we are leaving that discretion in the hands of someone who should not exercise that discretion, ”he added.

While Bonello and Zammit Maempel have both acknowledged that there may be certain circumstances in which a judge or magistrate may, for example, order a ban on the publication of the names of victims in sensitive cases such as those involving the child abuse, the lack of criteria means that the Director General of the Court is not bound to stick to well-defined exceptions.

Since such a legal notice can be challenged by a motion tabled in parliament by the opposition, questions about this were addressed to PN justice spokesperson Karol Aquilina. Reached for comment, Aquilina confirmed that the opposition was working on formulating a response to the government’s advice, saying they would provide more details later in the week.


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