Country report for Malta

Abstract

Although Malta has both a general as well as a more specific remedy that provides for access to justice via judicial review for environmental issues, it is not fully in line with the provisions of article 9 (3) of the Aarhus Convention. This is mainly because Maltese law has predated Malta’s ratification of the Convention and although when introduced these judicial remedies did reflect innovative legal thinking, nowadays they fall short of the requirements dictated by the notion of direct access to justice on environmental matters to the individual and to NGOs, that is typical of the Aarhus Convention. The Maltese authorities have acknowledged that there is this gap and have issued public statements that the matter is currently being subjected to a legal exercise that would eventually harmonise Maltese legislation with the Aarhus Convention]. Malta does not have an administrative procedure for access to justice, which can be used for environmental matters. These remedies consist of a general provision under the Code of Organisation and Civil Procedure, Article 469A that provides for the judicial review of any act by the public sector. This legal provision does not only apply to violations of environmental law but to all administrative actions carried out by the public sector in general. It is general but actually more valid when it comes to the application of Article 9(3) of the Aarhus Convention because the environment specific remedy, provided by article 24 of the EPA allows only the Chairman of the Environment Fund to institute an action for environmental damages when environmental laws are breached. The wording of article 24 also obligates the Chairman to take such action on behalf of the government. This prevents the Chairman from acting when the public institution involved is the government itself. It can only proceed when the public institution has a separate juridical personality that is distinct from the government. The NGOs lack legal standing because there is currently no legal instrument that bestows them with a legal personality. This is being tackled by a draft Bill that is currently awaiting promulgation by Parliament but the Bill has been more than five years in the pipe line. To date none of the two remedies have ever been applied in practice with respect to a breach of environmental law. This makes it difficult to assess the length of time involved and the costs as well as any legal difficulties the courts may encounter in deciding upon such a case. If proceedings were to be initiated both under the COCP and the EPA, there is the possibility of an appeal before the Civil Court and legal aid is also available. It is estimated that the costs involved would range between 100 to 300 Euros if legal aid is resorted to, although in the case of an action by the Chairman of the Fund there would be no costs involved and the time frames involved would be around two years for the courts of first instance to reach their final decision.