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Resolution 2293 (2019)
Daphne Caruana Galizia’s assassination and the rule of law in Malta and beyond: ensuring that the whole truth emerges
1. Daphne Caruana Galizia, Malta’s
best known and most widely-read investigative journalist, whose
work focused on corruption amongst Maltese politicians and public
officials, was assassinated by a car bomb close to her home on 16
October 2017. The response of the international community was immediate.
Within the Council of Europe, the President of the Parliamentary
Assembly, the Secretary General and the Commissioner for Human Rights
all called for a thorough investigation into the murder. Ms Caruana
Galizia’s murder and the continuing failure of the Maltese authorities
to bring the suspected killers to trial or identify those who ordered her
assassination raise serious questions about the rule of law in Malta.
2. Recalling the recent conclusions of the European Commission
for Democracy through Law (Venice Commission) and of the Group of
States against Corruption (GRECO) concerning Malta, the Assembly
notes the following:
2.1. the Prime
Minister of Malta is predominant in Malta’s constitutional arrangements,
sitting at the centre of political power, with extensive powers
of appointment;
2.2. the Office of the Prime Minister has taken over responsibility
for various areas of activity that present particular risks of money
laundering, including online gaming, investment migration (“golden passports”)
and regulation of financial services, including cryptocurrencies;
2.3. senior officials in the civil service are appointed by
the Prime Minister, which is problematic from the perspective of
checks and balances. Large numbers of “persons of trust” are appointed
to public posts through non-transparent procedures that provide
for exceptions to merit-based appointments, which may be illegal,
and is a danger to the quality of the civil service;
2.4. Malta’s unicameral parliament consists of poorly remunerated
part-time members, to many of whom (notably from the governing party)
the government has given well-paid positions as contractors, as
persons of trust or on public bodies, which – along with the fact
that almost half of the governing party members are also ministers
– contributes to the parliament as a whole failing to assure an
effective control over the executive;
2.5. judges and magistrates are appointed by the Prime Minister,
who exercises an unfettered discretion to choose from amongst formally
qualified candidates and may even disregard the advice of the body
established to determine whether candidates are qualified. This
allows for potential political influence, which is incompatible
with judicial independence and the rule of law;
2.6. the Attorney General is appointed by the Prime Minister
and both provides legal advice to the government and prosecutes
criminal offences, which is problematic from the perspective of
democratic checks and balances and the separation of powers;
2.7. the recently proposed State Advocate Bill does not respond
to all of the Venice Commission's recommendations and is inadequate
to reform the office of Attorney General;
2.8. the Commissioner of Police is appointed and can be dismissed
by the Prime Minister, who dismissed or saw four Commissioners resign
between 2013 and 2016. This contributes to a public perception that
the police force is not politically neutral in the service of the
State when enforcing the law and protecting citizens;
2.9. magisterial inquests as a means of investigating criminal
offences improperly allow victims and alleged perpetrators of crimes
to choose an avenue of investigation. They are poorly co-ordinated
with police investigations, take an inordinately long time and tend
towards confusion, inefficiency and ineffectiveness;
2.10. the procedure for committing criminal cases to trial may
be extremely slow, with serious consequences if it results in suspects
being released on bail upon expiry of the preventive custody time limit;
2.11. the effectiveness of the office of Parliamentary Ombudsman
is undermined by the government’s failure to provide information
necessary for its work and the parliament’s failure to act on cases
where public authorities have rejected the Ombudsman’s recommendations;
2.12. the effectiveness of the office of Auditor General is
undermined by a lack of means, resulting in delays to important
audits;
2.13. the Financial Intelligence Analysis Unit, Malta’s specialist
anti-money laundering body, has had its authority and reputation
damaged through its role in various recent scandals. The European
Banking Authority (EBA) found that the Financial Intelligence Analysis
Unit breached European Union anti-money laundering standards in
a way that pointed to general and systemic shortcomings;
2.14. the office of Commissioner for Standards in Public Life,
intended to prevent conflicts of interest among politicians and
State officials, appears to lack the necessary means, including
powers of investigation and sanction, to fulfil its role effectively;
2.15. the Freedom of Information Act is undermined by many exceptions
to the principle of access to official documents, with the result
that public authorities systematically obstruct requests for official documents
and the transparency of the administration is not guaranteed;
2.16. the Protection of the Whistle-blower Act, although in
many ways laudable, is undermined by a lack of protection for whistle-blowers
who report to the media, by the role of the Attorney General and Commissioner
of Police in granting immunity to potential whistle-blowers and
by the fact that the reporting channel for external whistle-blowers
is the Cabinet Office;
2.17. the Permanent Commission Against Corruption is structurally
flawed, utterly ineffective in practice and could be abolished,
providing other necessary reforms are introduced.
3. The Assembly notes that these fundamental weaknesses have
allowed numerous major scandals to arise and go unchecked in Malta
in recent years, including the following:
3.1. the Panama Papers revelations concerning several senior
government figures and their associates, which have still not been
investigated, other than by a magisterial inquiry primarily into
the Prime Minister, Joseph Muscat, and his wife, the full results
of which have not been made public;
3.2. the Electrogas affair, in which Konrad Mizzi, then Minister
of Energy and Water Conservation, supervised a highly irregular
procedure whereby a major public contract was awarded to a consortium. The
consortium included the Azerbaijani State energy company, which
also made large profits from a related contract to supply liquid
natural gas at a price well above the market rate. Another member
of the consortium owned a secret Dubai company, 17 Black, that was
expected to make large monthly payments to secret Panama companies
owned by Dr Mizzi and Keith Schembri, Chief of Staff of the Prime
Minister. 17 Black received large sums of money from an Azerbaijani
national and a company owned by a third member of the consortium.
Despite being officially informed about the case by the Financial
Intelligence Analysis Unit, the police have taken no action against
Dr Mizzi or Mr Schembri;
3.3. the Egrant affair, in which, nine months after presenting
a report said to exculpate the Prime Minister, the inquiring magistrate,
who had been appointed by the Prime Minister, was promoted to judge by
the same Prime Minister. The Assembly calls on the Prime Minister
to make good on his promise to publish the full inquiry report without
further delay;
3.4. the Hillman affair, in which Mr Schembri was allegedly
involved in money laundering with Adrian Hillman, then managing
director of Allied Newspapers. The police failed to act, despite
a Financial Intelligence Analysis Unit report, and a magisterial
inquiry is still ongoing two years later;
3.5. the “golden passports” affair, in which Mr Schembri received
€100 000 from his long-standing associate Brian Tonna, owner of
the accountancy firm Nexia BT, an agent for “golden passport” applicants.
The Financial Intelligence Analysis Unit found that Mr Tonna had
received this money from three applicants for golden passports.
The police have declined to investigate and a magisterial inquiry is
still ongoing two years later;
3.6. the Vitals Global Healthcare affair, in which Dr Mizzi,
also Minister for Health at that time, awarded a major hospitals
contract to a consortium with no prior experience in the field and
to which the government had allegedly promised the contract before
the bidding process began. Vitals Global Healthcare may have received
as much as €150 million from the government, yet made negligible progress
with promised investments in the hospitals, before being sold to
a United States health-care company. The Auditor General is currently
investigating this affair;
3.7. the fact that both Mr Tonna and his firm Nexia BT, who
played key roles in the Panama Papers, Electrogas, Egrant, Hillman
and “golden passports” affairs, received numerous lucrative government contracts,
including after Mr Tonna came under investigation. The Accountancy
Board has declined to take disciplinary action against them;
3.8. the role of Pilatus Bank, which was rapidly licensed by
the Maltese Financial Services Authority, leading to significant
concerns on the part of the European Banking Authority, and whose
clients included mainly “politically exposed persons”, including
Mr Schembri, and companies owned by the daughters of the President
of Azerbaijan. The bank’s owner was connected to the Prime Minister
and Mr Schembri, and was arrested by the United States authorities
and charged with violating sanctions against Iran. Pilatus bank
was subsequently closed by the Maltese Financial Services Authority
and the European Central Bank.
4. The Assembly concludes that the rule of law in Malta is seriously
undermined by the extreme weakness of its system of checks and balances.
Noting that individuals such as Dr Mizzi, Mr Schembri and Mr Tonna seem
to enjoy impunity, under the personal protection of Prime Minister
Muscat, for their involvement in the above affairs, the Assembly
considers that recent events in Malta illustrate the serious damage
that can result from its dysfunctional system. Despite certain recent
steps, Malta still needs fundamental, holistic reform, including
subjecting the office of Prime Minister to effective checks and
balances, ensuring judicial independence and strengthening law enforcement
and other rule of law bodies. Malta’s weaknesses are a source of
vulnerability for all of Europe: Maltese citizenship is European
Union citizenship, a Maltese visa is a Schengen visa, and a Maltese
bank gives access to the European banking system. If Malta cannot
or will not correct its weaknesses, European institutions must intervene.
5. The Assembly therefore:
5.1. calls
on Malta to implement as a matter of urgency the reform packages
recommended by the Venice Commission and GRECO, in their entirety.
Reforms should be designed and implemented as a coherent, co-ordinated
package, through an open, widely inclusive and transparent process;
5.2. welcomes the Prime Minister’s initial pledge to implement
all of the Venice Commission’s recommendations and encourages him
to take a similarly positive approach to those of GRECO;
5.3. calls on the Maltese Government to publish a road map
setting out substantive details of all relevant reform proposals
and to seek the opinion of the Venice Commission on it;
5.4. encourages the Prime Minister to refrain from making further
judicial appointments until the procedure has been reformed in line
with the Venice Commission’s recommendations;
5.5. welcomes the Maltese authorities’ co-operation with the
Council of Europe on reform of the committal procedure;
5.6. urges the Maltese law-enforcement bodies to end the prevailing
climate of impunity by robustly investigating and prosecuting those
suspected of being involved in or benefiting from the scandals exposed
by Daphne Caruana Galizia and her colleagues;
5.7. recalls that evidence is not a precondition for launching
a criminal investigation, but its possible result. To prevent impunity,
investigations must be launched as soon as there is credible information, such
as the Panama Papers, indicating that a criminal offence may have
been committed.
6. The Assembly considers that the weaknesses of the rule of
law in general and the criminal justice system in particular are
also directly relevant to its analysis of the authorities’ response
to the assassination of Daphne Caruana Galizia. It recalls that
18 months after they were brought to court, the three men suspected
of killing Ms Caruana Galizia have still not been put on trial.
The custody time limit expires in two months, after which they will
have to be released. No one has been arrested for ordering the assassination.
A magisterial inquiry is still ongoing, with no news on its progress.
7. The Assembly notes a series of serious concerns over the investigation
into the murder, including:
7.1. the
need to recuse a series of magistrates from various roles because
of conflicts of interest;
7.2. the need to remove the investigating police officer because
of a perceived conflict of interest;
7.3. the Prime Minister’s decision to promote to judge the
inquiring magistrate, thereby removing him from the inquiry after
months of work;
7.4. the failure of the authorities to request possible evidence
from the German police;
7.5. the failure of the police to interrogate Chris Cardona,
Minister for the Economy, despite claims that he had had contacts
with the suspects;
7.6. the allegation that a police officer warned the suspects
before they were arrested;
7.7. false claims by the Minister of the Interior about progress
in the investigation;
7.8. inflammatory and misleading statements by persons close
to the Prime Minister;
7.9. the possibility that the Maltese security service may
have had prior intelligence about the murder plot;
7.10. the Director of Europol’s complaint about co-operation
with the Maltese police on the case.
8. In these circumstances, the Assembly calls on Malta to establish
at the earliest opportunity, within three months, an independent
public inquiry in order to ensure fulfilment of its obligations
under Article 2 of the European Convention on Human Rights (ETS
No. 5).
9. The Assembly resolves to continue following developments in
Malta in relation to the above issues and encourages its Committee
on the Honouring of Obligations and Commitments by Member States
of the Council of Europe (Monitoring Committee) to address them
in its periodic review of Malta.