Tista' taqra bil-Malti
Daphne Caruana Galizia
Daphne Caruana Galizia, the investigative journalist, writer and anti-corruption activist, was murdered on 16 October 2017, in a brutal, intricate assassination. Malta’s most famous journalist, Daphne was murdered close to her home in Bidnija, Malta with a bomb placed under the seat of her car.
Daphne has been described as “Malta’s crusading scourge of official corruption, cronyism and incompetence… the embodiment of investigative journalism: forthright, uncompromising and totally fearless.”
Within days of Daphne's death, four United Nations experts issued a statement, calling on the Government of Malta to “honour its commitment to a prompt, independent investigation”.
It is now over two years since Daphne's assassination and since the call by the UN experts for a “prompt, thorough and independent public inquiry and investigation.” During this time, grave concerns have been raised by numerous international bodies, including the Council of Europe and the European Parliament, regarding the progress and remit of the investigations underway, and the rule of law in Malta.
Why is a public inquiry needed?
Following her murder on 16 October 2017, the Maltese authorities initiated criminal proceedings against the men who allegedly detonated the bomb that killed Daphne and a parallel magisterial inquiry into whether others should be charged with criminal offences for commissioning the alleged assassins. Both the criminal proceedings and magisterial inquiry focus solely on criminal culpability.
However, neither process is investigating the wider and even more serious question as to whether the Maltese state is responsible for the circumstances that led to Daphne’s death.
Malta is legally obliged, under Article 2 of the European Convention on Human Rights, to ensure that the investigation into Daphne's death is independent and effective. This is especially so if there is a possibility of state culpability for the death or system failure in preventing it.
To comply with Malta's Article 2 obligation, Malta's authorities must answer not only the question of who detonated the car bomb, but also wider questions, including questions about criminal culpability of any masterminds behind the assassination and their intermediaries, what steps were or ought to have been taken by authorities to protect Daphne and us, her family, from known risks to her life, and any contributing system failures that could or should have been prevented.
In almost two years since the car bomb attack, Malta has still not instituted any form of inquiry into these wider circumstances surrounding Daphne's assassination. As more time passes, more evidence disappears.
What's happening?
2 October 2019 — After calling for the meeting, Daphne's family meets the Prime Minister, Minister of Justice and Attorney General.
22 September 2019 — Daphne's family raise concerns over the choice of two members of the commission, Anthony Abela Medici and Ian Refalo. Objections to the conflicts of interest of these individuals, as well as serious problems with the terms of reference, were raised formally with the government. Council of Europe Rapporteur Pieter Omtzigt says that the public inquiry announced by the government of Malta does not meet the human rights body's expectations.
21 September 2019 — The government of Malta announces the decision to set up a public inquiry commission late in the evening on a Friday, five days before the deadline set by the Council of Europe. The government appoints Michael Mallia, a former judge, to chair the board of inquiry and former Dean of the Faculty of Law and constitutional expert Professor Ian Refalo and forensic expert Dr Anthony Abela Medici, as members of the Commission.
Why is a public inquiry important?
Independent and effective examinations of possible breaches or failures by the state to protect the right to life are important to both the victims' families and to everyone else. This is because these examinations are the only legal mechanisms by which the Maltese state can learn lessons about its systemic and institutional cavities and failures, and about the changes it must make to prevent future deaths of investigative journalists and campaigners.
How will the public inquiry work?
To comply with Article 2 of the ECHR, the public inquiry must be conducted independently of state authorities, including the Maltese police, government and politicians.
It must have comprehensive, transparent and accessible terms of reference. Civil society should be allowed to monitor the public inquiry.
It must involve us in a meaningful way. This includes access to information and an opportunity to put questions to witnesses. There should be a public hearing stage.
These are the minimum requirements to comply with the law, including by engendering public confidence in the process and allaying public concern.
What is the status of the current judicial inquest?
Currently, there is no legally compliant process examining whether Malta complied with its protective obligation to Daphne. A public inquiry can determine whether Malta knew, or ought to have known, of a real and immediate risk to Daphne's life; the adequacy of any steps taken by Malta to guard against that risk; and any steps that Malta needs to take to prevent future deaths of investigative journalists or campaigners in similar circumstances.
A review of Malta's legal system by the Council of Europe's Venice Commission, accepted as correct by Malta's own government, recognises that the only purpose of the inquest is to describe and conserve material evidence.
A review of Malta's ability to fight corruption, by the Group of States Against Corruption, found serious structural deficiencies in its criminal justice system.
The Council of Europe's resolution on Daphne's assassination therefore recognises that what is being done to investigate the murder is not sufficient.
Aren't three people already being prosecuted?
The three men arraigned on 4 December 2017 and accused of placing and remotely detonating the bomb which killed Daphne have not been brought to trial.
The arraignment of the alleged assassins and the “inquiry” in relation to any mastermind, are focused purely on criminal culpability. There is no process investigating the circumstances of Daphne's murder.
Neither the police nor the magistrate conducting the inquest are tasked or equipped to explore the wider questions surrounding Malta's obligation to protect Daphne. Even if the police investigation and magisterial inquest were operating entirely independently and effectively, they have limited scope and are not tasked with investigating the wider circumstances surrounding Daphne's assassination.
This includes the crucial question of whether Daphne's life could and should have been saved. Worse still, the current processes are also inherently unable to perform another key function: that of preventing future deaths.
Which supranational organisations are calling for a public inquiry?
The Council of Europe's Parliamentary Assembly passed resolution 2293 in June, demanding that Malta set up an “independent public inquiry” into Daphne's assassination within three months.
Four UN experts called for a “prompt, thorough and independent public inquiry” immediately after Daphne's assassination. They are: Agnes Callamard, Special Rapporteur on extrajudicial, summary or arbitrary executions; Michel Forst, Special Rapporteur on the situation of human rights defenders; Juan Pablo Bohoslavsky, Independent Expert on the effects of foreign debt and human rights; and David Kaye, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.
The European Parliament passed resolution 2018/2965 in March, which, “Calls on the EU institutions and the Member States to initiate an independent international public inquiry into the murder of Daphne Caruana Galizia and the alleged cases of corruption, financial crimes, money laundering, fraud and tax evasion reported by her, which involve high-ranking current and former public officials of Malta.”