Thursday, 30 January 2025, 17:39
Last update: about 32 minutes ago
Citizens would be required to file a police report six months prior to requesting the initiation of a magisterial inquiry if government’s proposed reforms are enacted into law.
The government has proposed changes to the way magisterial inquiries are requested. The Bill was tabled in Parliament and has passed through the first reading, with the Opposition having voted against it.
Under the proposed reforms, citizens would first need to file a police report, instead of going directly to court to request a magisterial inquiry, and if, after six months, the police have not taken sufficient action, the citizen may then go directly to a Judge and file a request before the Criminal Court, which will decide whether to launch an inquiry.
Described as a “complete” reform by Prime Minister Robert Abela and Justice Minister Jonathan Attard, they presented the changes government is proposing on Thursday. If the Judge deems there is enough evidence to open an inquiry, then the case is passed on to an inquiring magistrate. This is applicable to suspected criminal wrongdoing which carries a sentence of more than three years in prison.
The reform includes measures that are applicable to all types of magisterial inquiries, whether initiated by the Attorney General or the Police Commissioner, a politician, a private citizen, and even those initiated after fatal accidents, Attard said in a press briefing on Thursday.
The reform proposes that the private citizen must first confirm the report they are making to the Police under oath, and is obliged to indicate the suspected person, and present the proof by which the report is being made. The police are then obliged to start an investigation to determine whether there is a basis or any proof which constitute that a crime was committed, decide whether it should prosecute, or make a request to open an inquiry on behalf of the private person on the suspected person.
If the Police decide not to prosecute, for example, the citizen may seek the remedy of going directly to the Criminal Court.
The Criminal Court, after examining the police’s investigation, may decide whether to allow the police to continue their investigations after six months or give them a deadline, decide that procedures must halt due to insufficient proof, or order the Police to start a magisterial inquiry immediately.
As it is examining police evidence, the Criminal Court may also grant the possibility to the suspected person to make their testimony.
Attard said that the citizens’ right to open an inquiry will not be removed, but rather it will be strengthened.
He continued that the functions of the inquiring magistrate will remain the same, which is to collect proof without bias, and declare whether there is enough evidence to prosecute a person suspected of a crime. The decision on whether the person should be prosecuted in Court would remain that of the Attorney General.
Attard spoke of situations which led to this reform, saying that a number of inquiries were being privately requested based on simple allegations, or without concrete evidence.
He also said that there is no definite term for an inquiry to be finalised, which led to government extending the period in which an inquiry must be concluded from 60 days to six months, which can be extended to up to a maximum of two years.
The magistrate must then conclude the inquiry after two years have passed and send it to the Attorney General for further action. An inquiry which has not been finalised may be sent back for further investigation by the Attorney General.
Victims of crimes or their relatives will also have the new right to request an update on the progress of a magisterial inquiry that concerns them after a lapse of six months, something which is non-existent today.
The families must also be given a copy of the magistrate’s report, at no charge.
Attard said that the current law has no control on the extension of an inquiry on people or other crimes, and there is no control on who is appointed as an expert in an inquiry, or how much they are paid.
He said that there are also no consequences for those who request an inquiry on a false premise, and there is a lack of guarantees for the suspected person and victims during the inquiry.
The reform will also ensure that a suspect called in to testify in the inquiry has the right to disclosure and to have a lawyer representing him. Under the proposed law, if an inquiry is kicked off, and the magistrate concludes that the request for the inquiry was filed abusively and maliciously, that person who requested it must bear all court expenses. This decision may be appealed.
Attard said that the amendments will crystallise the role of the magistrate in the magisterial inquiry. Criteria will also be introduced regarding the appointment of experts and their role in the process to ensure accountability and higher standards. Experts must be a physical person, and not a company, and they must have knowledge on the sector being addressed in the magisterial inquiry, if not accredited or listed in the list of experts, or have had a due diligence exercise carried out on them by the Department of Justice, Attard said.
The expert must be knowledgeable about their role in inquiries as established in the criminal law of our country, and expert fees will be based on comparable work within the country. Regarding inquiry-related expenses, where costs exceed €50,000 for appointing an expert, the Magistrate leading the inquiry is required to seek permission from the Chief Justice, who must consult with the Attorney General. The law will also clarify the role and function of the Inquiring Magistrate, primarily focusing on the preservation of admissible evidence.
“The reform of magisterial inquiries represents a significant step toward strengthening integrity and accountability in the investigative process. By ensuring that citizens, victims, and suspected individuals have clear rights and remedies, the reform aims to enhance trust in the justice system while safeguarding fundamental rights,” Attard said.
Prime Minister Robert Abela said that the current law is over 170 years old, save for minor adjustments throughout the years.
Abela said that this reform was an electoral promise, which aims to avoid the agony someone innocent feels when falsely subjected to a magisterial inquiry.
Abela said that in the past few months and weeks, there were those who “clearly abused” the legal framework and its many loopholes, and used the justice tool as a “means of persecution on people, ordinary citizens, legitimate businesses.”
He mentioned PL MP Carmelo Abela, who lost his job after being falsely implicated in the HSBC bank heist.
“We want to ensure that there is no repetition of such episodes of people who are clearly innocent who must pass through this. If, however, someone has indeed committed wrongdoing, then they must face judicial processes,” Abela said.
Responding to criticism that the reform was quickly pushed to Parliament’s agenda, Abela said that on the contrary, he believed government took too long to implement this reform, and should have done it earlier.
The Nationalist Party came out criticising the announcement.
‘This is fascism, this is anti-democratic’ – Robert Aquilina
Prime Minister Abela’s reform on magisterial inquiries is anti-democratic and an act of fascism, Robert Aquilina, representing Fondazione Falcone, said in a social media post on Thursday.
“With his reform on inquiries, Robert Abela is removing the effective power from the Courts and putting it in the hands of Anglu Gafa and Victoria Buttigieg so that they can completely close the doors of justice for the honest citizen,” he wrote.
Aquilina stated that in doing this, Abela is “burying justice once and for all in our country”. He continued that through Police Commissioner Gafa and Attorney General Buttigieg, the Prime Minister is “openly proclaiming the rule of delinquency”.
citizens’ right to request a magistrate’s inquiry is also being dismantled – Repubblika
Repubblika reacted to the government statement. “It appears that the government intends to completely eliminate the usefulness of citizens’ right to request a magistrate’s inquiry, despite the fact that this right has led to the prosecution of serious corruption cases, including the sale of hospitals. With the changes the government wants to implement, this prosecution would not have been possible.”
The government is saying that before citizens have access to the courts, they must first go to the police and cannot take action until six months have passed, Repubblika said. “The police are a branch of the government and fall under government ministers. As we have experienced in our country over the past ten years, the police have repeatedly refused to investigate and act on grand corruption. Citizens’ access to the judiciary has allowed us to appeal to a branch that is constitutionally independent of the government to uphold the law, even when high-ranking government officials break it. The freeze on access to the judiciary will mean that criminals will have six months to hide evidence, and magistrates will not be able to preserve evidence while waiting for these six months to pass.”
The organisations said that the process the government describes after the six months is first and foremost to examine why the police did not act, rather than to start the long-awaited inquiry. “This is identical to the existing process where individuals can challenge the police in court for failing to act on a complaint. This court review of police conduct is another delay created by the government before an investigation into alleged crimes-already known for at least six months-can even begin, giving criminals more time to evade justice if they are ever pursued.”
“The government is saying that in the request for an investigation that must first be submitted to the police, citizens can only provide evidence that is admissible in court. The collection of admissible evidence is the job of the investigation and subsequently the requested inquiry. It is the police who conduct investigations and the magistrate who conducts the inquiry who have the legal power to collect admissible evidence-using the power of arrest and seizure, which no ordinary citizen has or can have. A mere indication of a crime does not itself lead to someone’s conviction. However, it should-just as it does today-lead to a serious investigation, and if and when evidence is found, it should be gathered and used in a court process that determines an individual’s guilt or innocence. When the police request an inquiry today, they do not go to the magistrate with court-admissible evidence; they go with a reasonable suspicion of a crime to initiate investigations and start the inquiry. The government is imposing a higher standard-one that is intentionally impossible to meet-on ordinary citizens.”
“From what we understand of the government’s proposal, the last remaining tool in the fight against corruption is being removed, ensuring impunity for the corrupt. Just as we have laws supposedly against corruption, for whistleblower protection, and for freedom of information that are designed not to function, now the effectiveness of the law on citizens’ right to request a magistrate’s inquiry is also being dismantled. It is therefore clear that the Maltese state is more than ever captured by the mafia-an organized criminal group whose primary goal is to guarantee impunity for criminals when they steal, ensuring that no state institution remains capable of stopping them.”
