Issue link: https://maltatoday.uberflip.com/i/1532272
11 ANALYSIS maltatoday | SUNDAY • 9 FEBRUARY 2025 private citizens to request magisterial inquiries despite his requests to testify. Time limits: The new law ex- tends the timeframe for the con- clusion of a magisterial inquiry to six months, while allowing the possibility of extensions, which in complex investigations are always necessary. Howev- er, the new law will also put a two-year cap on inquiries to conclude at which stage all acts of the investigation will have to be passed on to the AG. The AG can ask for the continuation of an inquiry if they deem fit. This proviso is good insofar as it ad- dresses concerns over inquiries that keep dragging on for years but while it aims for greater efficiency this will only work if magistrates have adequate resources at their disposal, in- cluding access to a multitude of experts so that investigations do not get bogged down. It needs to be emphasised that the inves- tigation of financial crime and corruption is a time-consuming exercise that more often than not requires also cooperation from foreign jurisdictions that may not always be forthcoming. A mitigating factor could be having no cap on the timeline for a defined number of cas- es such as corruption, money laundering and other financial crimes. THE BAD Limits on investigation: An inquiry requested by a private citizen, if carried out, can only probe the suspect indicated in the original request thus limit- ing the magistrate's remit irre- spective of any other wrongdo- ing the inquiry can come across. Magisterial inquiries initiated at the behest of the police or the Attorney General have no such limitation. Court petition after six months: It is only after a lapse of six months from when the police report was filed that the individual can petition the Criminal Court to order the opening of a magisterial in- quiry. This effectively is a vote of no confidence in magistrates since today they alone decide whether an inquiry should go ahead or not. AG in charge: Magisterial inquiries will be put under the "supervision of the Attorney General", which can be inter- preted as a vote of no confi- dence in magistrates. Double clearance for expert fees: A magistrate will have to seek the Chief Justice's clear- ance for any expert expense that exceeds €50,000 and before granting approval or otherwise, the Chief Justice will have to consult with the AG. This effec- tively puts the AG in control of the inquiry, introducing anoth- er hurdle that effectively takes the search for evidence out of the magistrate's hands. No expert opinion: The role of court experts will be limited to determining matters of fact "without expressing an opinion with regard to the commission or otherwise of the offence". This proviso effectively stifles the analysis of facts that an ex- pert can make to shed light on their meaning. This is more concerning in complex inves- tigations involving financial crime where a reasoned inter- pretation of money movements and transactions is necessary to contextualise the facts at hand. The courts already allow expert opinion at trial stage, which raises the question as to why the government wants to stifle it at investigation stage. THE UGLY No direct petition to mag- istrate: The existing right en- titling an ordinary citizen to request a magisterial inquiry by filing a direct request with the duty magistrate is being re- moved. Private individuals will now have to file a police report. If the suspected crime carries a prison sentence of more than three years and the subject matter of the offence still exists (provisos that exist today), the person filing the police report may also request the opening of an inquest but this is not auto- matic. Admissible proof: The Crim- inal Court shall only consider proof that is admissible as evi- dence before a court of crimi- nal jurisdiction. It is extremely hard for a private citizen to ac- quire proof that is solid enough to stand on its own in a court of law, which is precisely why a magisterial inquiry is carried out. The scope of a magisterial inquiry is to find and preserve evidence, using tools that are unavailable to ordinary citizens or journalists. Expecting some- one to have admissible evidence at such an early stage is diffi- cult unless it is the police that unearth it during their investi- gation. Past experience related to the Panama Papers revela- tions, 17 Black and the Vitals hospitals deal have exposed the unwillingness of the police to probe such cases. Balance of probabilities: The Criminal Court will have to de- cide on the 'balance of proba- bilities' whether a magisterial inquiry requested by a private individual should commence. This means a higher level of proof is required in private in- quiries than those requested by the police and the AG for which 'reasonable suspicion' is enough. Severe uncapped penalty: If an inquiry does kick off and in the magistrate's view the suspect was unjustly probed because the claims were 'un- founded, frivolous, vexatious or abusive of the judicial process', the person having requested the inquest may be ordered to pay the costs of the inquiry. Such ac- tion can only be taken upon the request of the person who was subjected to the investigation and any decision by the magis- trate can be appealed. Such an uncapped penalty could run in- to thousands, if not millions of euros, effectively discouraging citizens from even asking for an inquiry. Joseph Muscat supporters outside the law courts in Valletta in 2024 when the former prime minister was charged with corruption in the Vitals hospitals project following the conclusion of a magisterial inquiry (Photo: James Bianchi/ MaltaToday) Anti-corruption campaigners fear that the proposed changes to magisterial inquiries will hamper the fight against corruption (Photo: James Bianchi/MaltaToday)