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MT 19 October 2014

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12 IN December 2011, Dr Joe Giglio was one of a number of lawyers who called for a reform of laws govern- ing the office of the Attorney Gen- eral: in particular, the wide discre- tion given to the AG in determining whether a particular case is heard in a magistrate's court (which entails a maximum penalty of 10 years) or the upper court, where the maximum penalty is life imprisonment. What sparked the initial protest was a Constitutional Court ruling which described this unfettered dis- cretion as 'insindakabbli' – i.e., im- mune to any legal challenge. This ruling would however prove very short-lived. The AG's discretion was in fact challenged by a number of cases at the European Court of Human Rights. Last year the ECHR handed down judgement in one such case… and unequivocally ruled the same unassailable discretion to be a human rights violation. This was very clearly a slap for Malta's justice system, which had only just come to the opposite con- clusion. As a result, Parliament was forced to introduce an amendment allowing citizens the right to chal- lenge the AG's decision in court. And the first ruling on the basis of this amendment, handed down by Mr Justice Michael Mallia earlier this month, found the AG guilty of the same human rights violation. Other cases brought before the Constitutional Court since then – including a very recent one filed by Daniel Holmes, a Welsh national serving an 11-year sentence for can- nabis cultivation – have likewise overturned the earlier 'insindakab- bli' verdict on the basis of this ECHR judgement. All things told, this seems to di- rectly vindicate Dr Giglio's earlier complaints about the same system. But certain questions remain unan- swered. For instance: while the law courts now have a mechanism in place to limit the AG's discretion, all those who had been judged un- der the previous system – and who were arguably imprisoned as a result of a vitiated legal process – remain in prison to this day, despite the fact that the system which tried them was found to be in itself illegal. For another, the discretion issue is only one of a number of anoma- lies in our criminal justice system. Other problems remain unresolved, including the fact that the country's chief prosecutor also doubles up as government legal advisor… creat- ing a glaring conflict of interest in cases involving the government or its members. I meet Dr Giglio at his legal office in Valletta, armed with these and other questions… including a few about his more recent appointment to a board which will advise the Nationalist Party on justice and home affairs. But first things first. Is he satisfied with the outcome of the ECHR ver- dict? And does he think the resulting legal amendment suffices to address the anomaly he has complained about for so long? "I think it's a good start. Even when you see how the criminal courts started to interpret and apply this remedy, I think it's very positive." At the same time, however, the view from outside the legal system is not necessarily so optimistic. The powers enjoyed by the AG have been deemed illegal; yet the solution did not actually strip him of these pow- ers. The AG still has discretion to make decisions that have an enor- mous bearing on the outcome of a trial; the only change is that his decision can now be challenged in court… which also entails headaches and obstacles (not least, financial) for the person at the receiving end of the injustice. In what way, then, has the problem been solved? "Solved? I didn't say it has been solved. I said it was a good start. What the European court ruled against was the system as it was before these amendments. A remedy has now been introduced that outlines, in a rather extensive way, the necessary guidelines as to which court a par- ticular case should be tried in or not. These guidelines are very detailed. The ECHR's ruling stated that be- fore, people were basically left in the dark about the situation. Now, the position has been clarified, and there are legislative guidelines to help us decide which case is heard in which court." What about cases already decided under the previous system? To cite but one example: Holmes won his Constitutional Court case on the ba- sis of the same human rights viola- tion, but beyond a rather paltry com- pensation of €7,000, the injustice itself has not been rectified… "Unfortunately for people in that predicament, the only solution they have is that they would most prob- ably be given monetary compensa- tion. It is unfortunate, yes. This is why I, along with many other lawyers in this field, had been clamouring for long that this discretion ought to be revisited..." But he also argues that the courts are powerless to overturn previous convictions. "The court can only ap- ply the law as it was at that point in time. It does not have the power to not act within the parameters of law. That is why it is 'justice according to law'…" Some might argue that justice on those terms is in fact no justice at all… "Perhaps, but the situation is that the courts do not have the power to change the law, only to apply it. It falls to the legislature, the executive, to do something about it…" Here we have ventured into po- litical territory: a territory Giglio will soon be actively involved in himself, in his new capacity as political advi- sor to the PN. It would seem from his reply that the real reason this situation dragged on for so long was not because of any inherent problem within the law courts, but because MPs failed to act on an injustice until they were forced to by the ECHR. How does he account for this fail- ure? He shrugs. "Don't put that ques- tion to me. Ask it of the person who introduced that system, and of the persons who opted to leave it there. What has happened in the mean- time is that while our insistence, as defence lawyers, had always fallen on deaf ears insofar as the lawmakers are concerned, it has finally been vin- dicated by the European court. It's a small consolation, but unfortunately this is how the system works. The consolation is that, at least we had the foresight to realise, years ago, that this was wrong…" And yet the same applies to other areas where the justice system could be improved, but where change is continuously resisted at legislative level. Another anomaly concerning public prosecution in Malta is that it is fronted in open court by the police, who also get to amass the evidence at arrest/interrogation stage. The deci- sion to arraign or not has to be taken on the basis of this evidence… which also means that in our system, there is no buffer zone to ward against vex- atious prosecutions. A practical example would be the recent case of a man unjustly im- prisoned over fabricated claims that he had sexually abused his daughter. There were glaring anomalies in the investigation that might have come to light sooner, had the evidence been vetted by an independent pros- ecutor… Giglio nods, as if to suggest that he could come up with dozens of other analogous examples himself. "I think that this system we have today basically needs an overall. It is archaic; it was introduced at a point in time, way back in 1854, when things were completely different. Society has since evolved; investiga- tive techniques have evolved and so has crime. Unfortunately I must say that the system did not evolve in step with these changes. The situation is such that the role the Attorney Gen- eral serves now goes far beyond what it was originally intended to be." Past attempts to address these is- sues were piecemeal, he adds. "They were not holistic, and failed to take in the wider picture. The time has come to change the way investi- gations are carried out, and prosecu- tions conducted, and to have a situa- tion where the whole process moves faster and that where those who erred are truly made accountable…" Unaccountability, he hints, remains rooted at the core of the problem. "When, in society, you are afforded responsibilities… if you have an in- vestigation that, for example, was badly handled, or a prosecution that, with all due respect, wore blinkers just like a horse… then I think we should have a greater possibility to be able to go back to those persons and hold them accountable for their actions. The truth is that it can be done today, yes; but at the end of the whole exhausting process, the only consolation is that the person at the receiving end of the injustice will be acquitted. "I don't think that is enough. Even because I think people who wield power need to understand that, should they not exercise that power professionally and appropriately, there will be consequences. If these people do not realise this, they will feel they are immune. They will feel that no one can ever go back and point a finger at them, so to speak. Today, investigators and prosecutors … even defence lawyers come into this equation… must all understand that they are here to serve. They must understand that they are here to help in the delivery of justice to- wards citizens. The same applies to judges…" Where does he see the most urgent need for reforms? "Let's discuss the mechanisms we have today. Starting with the Police Board, which is there to deal with any type of allegation of misconduct by prosecuting and investigating of- ficers. I don't think the tools we have given this board – and indeed the legislation itself that created it – suf- fice to reach this aim. The board has very limited powers, and all it can do is make a recommendation to the Commissioner of Police… which ob- viously the commissioner, with his discretion, can opt to ignore com- pletely." Interview By Raphael Vassallo maltatoday, SUNDAY, 19 OCTOBER 2014 Criminal justice on POLITICAL ASPIRATIONS I do not exclude anything. I take everything step by step, day by day. For the time being, this is the task that has been assigned to me. Yes, it obviously has political connotations. I will carry it out to the best of my abilities. Then we'll take it from there ARCHAIC SYSTEM The system we have today was introduced in 1854, when things were completely different. Society has since evolved; investigative techniques have evolved, and so has crime. Unfortunately the system did not evolve in step with these changes

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