Issue link: https://maltatoday.uberflip.com/i/1469874
12 maltatoday | SUNDAY • 5 JUNE 2022 NEWS Weak tools against corruption Malta has failed to introduce legislation giving criminal inves- tigation bodies the authority to seek and use special investiga- tive techniques such as wiretaps in the investigation of corrup- tion offences, empowering the judicial authority to authorise their use, and making the evi- dence obtained thereby admis- sible in court. While the Maltese authorities replied that the Security Service is already equipped with the necessary tools to prevent and detect serious crimes, Greco ex- pressed its disappointment that the Maltese authorities have not even conducted a legal analysis of what could be a possible way forward on this matter. GRECO stressed the impor- tance of the effective use of special investigative techniques when prosecuting corruption "owing to the complexity of ob- taining evidence regarding this type of crime". In its original evaluation GRE- CO had insisted that investi- gations on corruption can be based on a "reasonable suspi- cion" which "does not require that evidence is readily submit- ted" to the prosecution. The Maltese authorities replied that in the Maltese legal system, in- vestigations have to be based on a "reasonable suspicion" that an offence may have been commit- ted and this requires the "exist- ence of information or proof, reasonably indicating that the offence may have taken place". Greco noted that authorities have provided a few examples of specific cases relating to corrup- tion, where investigations have been initiated upon receiving information raising "reasonable suspicion", describing this as a "crucial first step in ensuring that corruption cases are duly investigated". The report also laments the absence of an "over-arching anti-corruption strategy" based on a risk assessment in respect of the Government and its top executive officials. It also ex- pressed disappointment that the Commissioner for Standards in Public Life has not been vested with any power to impose addi- tional sanctions when abuse is discovered. No prosecutor to hound corruption Despite legal reforms the Po- lice still retains "considerable prosecutorial functions in crim- inal proceedings", in parallel to the Attorney General's Office. And in contrast with the rec- ommendations of the Venice Commission, reforms fell short of setting up the office of an in- dependent public prosecutor who should be responsible for all public prosecutions includ- ing those against corruption. The recently introduced possi- bility of seeking judicial review against decisions not to pros- ecute is welcomed as a step to ensure that corruption offences do not go unpunished. Howev- er, this promising legal avenue is cut short by limiting it only to cases where a corruption re- port has been submitted by the Commissioner for Standards in Public Life, the Ombudsman and the Auditor General. And while noting that the new procedure for the appointment of the Attorney General is de- scribed as a "clear improvement of the previous system", the gov- ernment can still exert consider- able influence on the Attorney General through this procedure. This is because the procedure still gives a predominant role to the Prime Minister, who is only required to "give due consid- eration" to the advice from an appointment panel, established by the Minister of Justice who is subordinate to the Prime Minis- ter. Moreover contrary to recom- mendations made by the Ven- ice Commission the Permanent Commission against Corruption has retained jurisdiction regard- ing investigations into corrup- tion cases, which it can then refer to the Attorney General for prosecution. And while new prosecutions into corruption cases initiated by the Attorney General's Office are "encour- aging" "with so many investiga- tions into high-profile corrup- tion cases pending over a few years in Malta by now, the ur- gency for making the necessary systemic changes is at its peak". No rules against lobbyists GRECO wants clear rules to govern any contacts between persons with top executive functions (including ministers and their persons of trust) and lobbyists/third parties that seek to influence the public deci- sion-making process. It also wants a system through which such contacts and the subject matters discussed are disclosed in the public. The Maltese authorities re- plied that they are still examin- ing a number of proposals for regulating lobbying by third parties. And while the Commissioner for Standards the Commissioner has drafted a code of ethics for Ministers and MPs which fore- sees a transparency registry and has also proposed a separate law to regulate lobbying, the Mal- tese authorities have told Greco "that the matter of regulation of lobbying will form part of the discussions at the forthcoming Constitutional Convention". While welcoming the proposal made by the Standards Com- missioner for a law to regulate lobbying, Greco concluded that at present "there are no rules or legislation to regulate contacts between the people in top exec- utive positions and lobbyists in place, not even at the drafting level". Too many persons of trust The GRECO report reiterated its call on the Maltese govern- ment to limit the number of "such discretionarily-appointed officials" to an absolute mini- mum. But information submit- ted by the Maltese authorities does not indicate that the num- ber of persons of trust have de- creased from the around 700 persons employed in a position of trust at the time of the eval- uation. And while welcoming amendments adopted in April 2021, which provide a more detailed legal definition of "per- sons of trust", GRECO notes that persons of trust are still not considered to be an integral part of the civil service and subject to the same integrity rules. GRECO has also recommend- ed that the current regime of asset and interest declaration is extended to persons of trust who are associated with a min- ister's decision-making and that these declarations should also cover spouses. But this recom- mendation still has to be enact- ed. No system to regulate conflict of interests According to GRECO, Mal- tese public employees are still "left to their own devices in determining whether there is a potential or actual conflict of interests, and whether they should report it". And apart from the initial declaration by applicants for headship posi- tions, no procedures and dead- lines have been put in place for solving situations of conflict of interest. And while the Pub- lic Service Management Code does refer to "the responsibil- ity of the employee to inform one's Permanent Secretary" of a conflict of interests, a policy on the management of conflict of interest in the public sector has yet to be established. The Maltese authorities have informed GRECO that discus- sions are under way regarding the drafting of a policy on the management of conflict of in- GRECO verdict on Malta: insufficient progress Despite significant progress with a first attempt at regulating revolving doors and a new police code of ethics, Malta's fight against corruption is hampered by major institutional deficiencies, from how to regulate lobbying to equipping investigators with tools such as wire-tapping. James Debono goes through the deficiencies denounced by the council of Europe's anti corruption watchdog in its latest report