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Impunity is the name of the game

Pieter Omztigt
The Council of Europe’s Special Rapporteur Pieter Omtzigt.

The closing remarks of the Council of Europe’s Special Rapporteur Pieter Omtzigt summed up the assessment of Justice Minister Owen Bonnici and Attorney General Peter Grech’s performance today at the hearing in Strasbourg on the report on the assassination of Daphne Caruana Galizia.

“The Minister claims an investigation has shown the Prime Minister was innocent,” Omtzigt said. “In fact, the Egrant report was never published,” he added.

The Council’s Special Rapporteur echoed concerns in Malta that the selective publication of part of the findings of the magisterial inquiry were intended to whitewash reputations while the evidence remained buried.

The report was by the assassinated journalist who said the third company exposed in the Panama Papers belonged to the Prime Minister’s wife, Michelle Muscat (the other two have been proven to belong to the Prime Minister’s chief of staff and Minister Konrad Mizzi).

Bonnici insisted it was “a frame up” with false signatures intended to target “an innocent family”. Yet the argument failed to counter the logic that if that were true, then the government would have no problem publishing it in full.

It was the same logic that countered the arguments for the government’s refusal to launch an independent public inquiry into the journalist’s assassination.

Her family was forced to file a judicial protest in Malta for the public inquiry, arguing the government was in breach of the European Convention on Human Rights. The announcement was made at a side event at the Council of Europe yesterday, entitled ‘Impunity in Malta: the Assassination of Journalist Daphne Caruana Galizia’.

Clouding the issue

The arguments put forward by the AG and the Justice Minister had one thing in common: they both confused the terms “investigation” and “magisterial inquiry” as though they were one and the same thing.

A magisterial inquiry in Malta is not a conclusive judgment, ruling or result of some independent inquiry that can conclude on guilt or otherwise. In fact, the magistrate is not allowed to decide or state whether a person is guilty or otherwise (and the magistrate did not come to any such conclusion).

The aim of an inquiry is for the magistrate (not a court) on duty at the time (in this case, Magistrate Aaron Bugeja) to proceed to preserve any evidence of a possible crime. The end result of an inquiry into the ‘in genere’ is typically a lengthy document called ‘the acts of the proceedings’ or ‘procès-verbal’, which is a record of the evidence collected, according to lawyers consulted by The Shift.

This could in turn be used for further investigation by the AG and the police, if there is enough evidence (or appetite, which seems to be perpetually lacking), to commence proceedings in court – the only place where guilt or absolution may be awarded – in which case the “procès-verbal” is filed as evidence.

Yet, at the hearing today, both the Justice Minister and the AG kept referring to the conclusions of the “investigation”. Bonnici went as far as saying that “two investigations had been concluded”. One found the Prime Minister and his wife innocent, and the other concluded there were no grounds for further investigation, he said.

The Justice Minister even said, “the rule of law in Malta must be respected”, when the actions of the government he represents has risked triggering Article 7 proceedings.

The second ‘investigation’ Bonnici was referring to was the one where Judge Giovanni Grixti’s ruling was heavily criticised for his decision to reject even the opening of an inquiry to safeguard evidence. In effect, Grixti’s ruling meant a request for an inquiry required the kind of proof that the inquiry itself would normally obtain.

But the Council of Europe’s rapporteur made it clear the spin was not missed. “This is the only country where the Appeals Court closed an investigation on the grounds that the Panama Papers are not evidence. We also received no answers on whether the evidence was preserved. These people have admitted to having Panama companies. These are very serious issues,” he said.

Bonnici would not let him have the last word, insisting he couldn’t let the debate end on that note. He then repeated what he had said before, insisting on a “frame up”. The hostility was evident, and in line with Prime Minister Joseph Muscat’s attempt to discredit the Council of Europe’s Rapporteur in Parliament in Malta when he said he had doubts on his integrity.

The Council of Europe has only ever appointed two special rapporteurs before: for Boris Nemtsov and Sergei Magnitsky. Yet members of the Maltese government took offence that Caruana Galizia’s son, Matthew, compared Malta’s handling of his mother’s assassination to operations in Russia.

Shady business

Omztigt made it clear at the start that the Maltese economy was doing well on very risky business: the cash-for-passports scheme, crypto currency and igaming, all of which could be easily abused for money laundering.

“This creates serious problems for the whole of the EU, and has attracted international attention, including Greco, the European Parliament and MoneyVal. I will present my own report at the end of May,” he said.

The Justice Minister insisted this was a government of reform. He referred to the Whistleblower Act as “the second best” on paper, according to Blueprint for Free Speech. He did not mention the failure to protect former FIAU official Jonathan Ferris, and the fact that the only way the Whistleblower Act has worked so far was to dig up dirt on the former administration by people who got rewarded by millions in government contracts.

Bonnici spoke about reforms to the media law, saying it stopped criminal libel and prevented the filing of garnishee orders, used only by one of their own – Economy Minister Chris Cardona on Caruana Galizia to the point where her bank accounts were frozen at the time she was assassinated.

There were over 40 libel cases against her at the time of her death and they included the Prime Minister, his chief of staff, his “star” Minister and businessmen in the midst of government scandals.

“We left no stone unturned,” Bonnici insisted, seemingly unaware of his poor choice of language, as investigations are meant to be ongoing.

In what amounted to an interrogation of why the Maltese government was not conducting a serious investigation into the journalist’s death, Bonnici said he “still could not understand” why Caruana Galizia’s laptop was given to the German police.

Yet, there was no adequate answer on why the police in Malta had never bothered to ask for any information it contained, although it continued to feed the government line that the family somehow ‘obstructed’ the investigation.

The Attorney General’s dilemma

The hearing brought to the fore the AG’s “multiple and conflicting roles” noted by the Venice Commission, particularly the “double role” of the AG as government advisor and prosecutor.

Grech’s focus at the hearing was clearly in defence of the Maltese government (and he would not stop talking despite repeated warnings from the Chair).

Grech knows the distinction between a magisterial inquiry and an investigation, just as much as he is aware of the difference between the magisterial inquiry ongoing in Malta and an independent public inquiry. Yet, he stuck by the government’s guns.

On the question of an independent public inquiry, the AG said that while not ruling it out the European Court of Human Rights did not state they should be run in parallel. He said it was relevant to consider what such an inquiry could achieve while criminal proceedings were ongoing, despite the fact that the ongoing inquiry would not address the same questions as a public inquiry – such as, whether the State could have prevented her death.

He said: “I offered the family lawyers (the option) to ask the magistrate a question, (but) the family did not take me up on the offer”.

His statements came in the wake of a side meeting organised by international press freedom organisations yesterday in which they reinforced the call for a public inquiry on the day the family filed a judicial protest in Malta.

The international organisations said there were no assurances that the government had taken any steps to ensure that another journalist would not be murdered.

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Petra Caruana Dingli at The Shift News

Too many errors of judgment