International NGOs call for support of Council of Europe report on Malta

Eight leading press freedom and human rights watchdogs have called for support at the Council of Europe for the mandate and conclusions of the report by Special Rapporteur Pieter Omtzigt to be presented on Wednesday.

The European Federations of Journalists, Article 19, the European Centre for Press and Media Freedom, Reporters Without Borders, IFEX, the International Press Institute, Transparency International and PEN International said in a joint statement ahead of tomorrow’s debate on the report:

“The draft report is expected to highlight a number of serious concerns over the investigation into the murder of Daphne Caruana Galizia… We urge you to act in good faith in accordance with Malta’s ECHR obligations and support Mr Omtzigt’s mandate and report. We also ask you to constructively promote the implementation of its recommendations without delay, in the interest of achieving justice for Daphne Caruana Galizia and addressing the broader democratic shortcomings identified in Malta”.

Special Rapporteur Pieter Omtzigt was tasked by the Parliamentary Assembly of the Council of Europe (PACE) to investigate the assassination of journalist Daphne Caruana Galizia and the rule of law in Malta. It is the first EU Member State to be subjected to the scrutiny of a Special Rapporteur.

The debate will be held in a context where the draft report was leaked hours after it was posted on internal channels last week. It was leaked in the week leading up to the European Parliament elections, resulting in the government dismissing its contents by attacking the credibility of the Rapporteur.

Malta failing European standards on rule of law

Malta’s system of government has come under serious criticism in a scathing Council of Europe report that cites “systemic failings” in the rule of law and democratic checks and balances in the country.

The PACE report, drafted by Pieter Omtzigt, says that Malta’s government institutions, the criminal justice system and law enforcement bodies do not comply with European standards on rule of law.

Significant weaknesses include a lack of independence on the part of the police and other authorities and excessive power in the hands of the Prime Minister. Worse, that concentration of power has been systematically abused and reinforced. It also cited Malta’s cash for passports scheme, igaming and crypto industries, and lax money laundering enforcement as a “source of vulnerability for all of Europe.”

The report notes that close associates of the Prime Minister, such as Nexia BT Managing Partner Brian Tonna, have received a number of lucrative government contracts (despite Tonna’s involvement in the Panama Papers and the Hillman Affair), while Panama Papers Minister Konrad Mizzi and the Prime Minister’s Chief of Staff Keith Schembri enjoy total impunity under Joseph Muscat’s “personal protection”.

The FIAU had also been noted to have breached the law, as well as to be operating despite “structural and operational shortcomings”. Similarly, investigations by the Auditor General and Ombudsman are often hampered and their conclusions routinely ignored or brushed off.

The Panama Papers and a number of other scandals including Vitals Global Healthcare, Pilatus Bank, Electrogas, and the Golden Passports affair have either not been investigated, or are the subject of investigations that are still ongoing years later. Lastly, when important investigations are ostensibly finalised (such as Egrant where the prime minister himself declared an investigation into himself to be a ‘closed chapter’) the actual reports are, instead of being published, being closely guarded by the government based on increasingly tenuous and ever-changing arguments.

Omtzigt points out that these are “established, uncontested facts, not just speculation or allegations”.

A culture of impunity

Concerns were also raised around the investigation into the murder of Daphne Caruana Galizia. “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,” the report says.

The current state of the murder investigation is described as suffering from a “prevailing culture of impunity”. Maltese authorities are called upon to robustly investigate and prosecute those suspected of being involved in the scandals Caruana Galizia exposed, as well as those who carried out the murder and masterminded it.

The report notes that the police failed to interview Economy Minister Chris Cardona, despite several witnesses alleging he had contact with the accused killers both prior to and after the event. The Maltese police have also failed to request Caruana Galizia’s laptops from German police.

False and misleading statements have been made about the case by people close to the Prime Minister. The Prime Minister also removed the inquiring magistrate after months of work, and a number of police and judicial figures had to recuse themselves (or be removed by the Court) due to conflict of interest.

Most alarming of all, the report points out that the Malta Security Service could have had prior intelligence about the bomb plot, and that suspects may have been warned before their arrest,

Omtzigt said he can fully understand why the Caruana Galizia family have no confidence in the ability of the Maltese authorities, noting that the process has moved at a “glacial pace”, the masterminds behind the killing have not been identified or arrested, and the three suspects currently in custody will soon be released on bail if they are not indicted.

An independent inquiry in three months

He gives his full support for the clear need for an independent inquiry to start within the next three months, pointing out that failure of the Maltese government to do so will be a breach of Article 2 of the European Convention on Human Rights (ECHR).

Shortcomings with the government’s recent Whistleblowers Act were also mentioned in the report. The Council of Europe report notes that, while this legislation is indeed “laudable” on paper, it is being ignored or undermined in practice by each of the government and the attorney general.

The main reason cited is because whistleblowers are expected to show their evidence to the government in order to qualify for protection, they could be placed in a situation where they have to report to the very people being implicated. This is the case for former FIAU officer Jonathan Ferris. The report also referenced Valery Atanasov, who raised concerns around supervisory malpractice and was sacked and then sued for defamation by the Malta Gaming Authority.

The government has made many public statements praising the judicial reforms they are undertaking, but the Council of Europe is not convinced, noting that “the proposals fall short of the Venice Commission’s recommendations in several important aspects”.

The independence and impartiality of the judicial system are called into serious doubt, not least because the Prime Minister’s power to appoint judges and magistrates is “not compatible with modern notions of independence of the judiciary.”

The Council of Europe calls on Malta to implement the Venice Commission recommendations in their entirety, adding that the Prime Minister’s recent judicial appointments show “contempt for the courts”, an attitude entirely at odds with Muscat’s promises to implement the recommendations. But he later said they were only “guidelines”.

“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”.

A weak link

The report further warns that “Malta’s weaknesses are a source of vulnerability for all of Europe”, and that if “Malta cannot or will not correct its weaknesses, European institutions must intervene.”

In response to published excerpts of the report, the government has said that “the reality on the ground was very different from what was described” and dismissed it as a partisan document written by a member of the PN’s own political family (EPP).

The Prime Minister, as well as the Justice Minister, have in the past attempted to block the motion for the drawing up of this report as well as, once that failed, repeatedly attacked the Dutch MP’s credibility well before the report was even drafted.

The Justice Minister followed saying the government would reply to the “serious inaccuracies” in the report.

The Council of Europe, based in Strasbourg, is primarily a human rights organisation. It is an entirely separate organisation from the European Union (EU), but all 28 EU Member States are members of it.

The Council of Europe advocates freedom of expression and of the media, freedom of assembly, equality, and the protection of minorities. The Council of Europe helps member states fight corruption and terrorism and undertake necessary judicial reforms.

Its group of constitutional experts, known as the Venice Commission, offers legal advice to countries throughout the world. Its best-known products are the European Convention on Human Rights – a treaty designed to protect human rights, democracy and the rule of law – and the European Court of Human Rights that oversees how the Convention is implemented.