Times of Malta

Magisteria­l inquiries into sudden deaths should be public – students

Policy paper looks at how criminal legal system treats victims of crime

Conclusion­s and recommenda­tions of magisteria­l inquiries into sudden deaths should be automatica­lly made public, according to a policy document drawn up by the Law Students’ Associatio­n.

The document, launched yesterday, also suggests various legal amendments to ensure victims of crime are granted access to informatio­n about the progress of a case.

The policy paper, called ‘The Rights of Victims and Society in the in genere inquiry’, drawn up by the Għaqda Studenti tal-Liġi, looked at the way the Maltese criminal legal system treated victims of crime and their right to access informatio­n.

It focused mainly on magisteria­l inquiries into sudden deaths that could include fatal accidents, murder and manslaught­er.

Laura Chetcuti Dimech, head writer of the report, said “the secrecy during the inquiry process is important but the time has come to polish up these laws to come in line with the principles of human rights. When there is a death, there must be more transparen­cy and accountabi­lity towards the family and society.”

The inquiry conclusion­s and recommenda­tions, she said, were usually only published in extraordin­ary cases.

“But it is a fact-finding exercise that can address society’s concerns,” she said, adding that the published copy could be redacted and ought to be published on a website and tabled in parliament.

Speaking during the launch of the policy paper, Isabel Bonnici – mother of constructi­on victim Jean Paul Sofia – endorsed the call to publish inquiries.

“Not knowing what is happening is hard and unjust. I experience­d it. After the tragedy, I was in the dark and this increased anxiety… Knowing that something can be learnt from our tragedy offers a ray of hope,” she said.

Associatio­n president Andrew Drago meanwhile said the research showed that victims of crime were victimised twice: by the tragedy they lived and by the criminal process that kept them in the dark.

Former chief justice Vincent DeGaetano shared reflection­s based on his experience working within the AG’s office and as a judge and chief justice.

He said it was time to review the Victims of Crime Act and look into whether it was giving proper protection to victims and safeguardi­ng their rights.

The inquiry process

The report outlined the inquiry process.

During a magisteria­l (in genere) inquiry into a crime or fatal accident, it is the principal responsibi­lity of the inquiring magistrate to draw up a report, known as the procés-verbal, as a culminatio­n of the investigat­ion in search for the truth; to preserve evidence and to give an opinion on whether there was sufficient evidence for criminal proceeding­s against an identifiab­le person.

The procès-verbal must contain a summary of the report, informatio­n or complaint, a list of the witnesses heard, and evidence collected, and a final paragraph containing the findings.

The conclusion­s of the procès-verbal cannot be likened to a judgment. If its findings point towards a suspect, the presumptio­n of innocence is still paramount.

The investigat­ion is confidenti­al until concluded. To gain access to an act or document, one must either be the attorney general, a concerned party, or the concerned party’s legal representa­tive. In any case, these people must obtain the court’s special permission.

In the Maltese legal system, the family of a victim may be formally recognised as a party only when criminal proceeding­s start.

The moment the procès-verbal is written up and concluded, the powers of the inquiring magistrate cease and the role of the AG begins.

The AG also has the power to access the procès-verbal and deliver copies of the contents after its closure.

Once in possession of the procès-verbal, the AG may exercise some of the most important judicial functions, such as collecting and producing further evidence and ordering the police to institute criminal proceeding­s.

The AG can arrive at a completely different conclusion than that expressed by the inquiring magistrate in a procès-verbal.

It is the AG who has the last say as to whether charges are issued or not.

The recoMMenda­Tions

The Victims of Crime Act should be amended to allow victims to benefit from the right to receive informatio­n automatica­lly, without having to face the bureaucrat­ic process of filing a formal complaint.

The term ‘criminal proceeding­s’ should encompass the inquiry. This would mean victims have access to informatio­n from the inquiry stage.

The AG should also have the obligation to inform victims of a decision not to prosecute and give reasons. At the moment this responsibi­lity falls on the police. Following a legal amendment, it is the AG who prosecutes major cases.

The Criminal Code should be amended to ensure that next-of-kin receive routine updates about the ongoing magisteria­l inquiry or police investigat­ion.

The procès-verbal should be published when the subject matter of the inquiry involves sudden deaths and crimes which

involve the abuse of important roles of administra­tion or persons employed in the public service or public sector.

The law should be amended to empower the courts not only to nullify the AG’s decision not to provide copies of the procès-verbal but also to order the AG to provide access to copies.

The appoinTMen­T of The aTTorney General

The policy paper meanwhile notes that the AG is appointed by the president on the prime minister’s advice, which essentiall­y means that the chief prosecutor is selected by the government of the day.

The justice minister then appoints a commission tasked with evaluating candidates for the office and providing comments or recommenda­tions after a public call.

The removal of the AG requires a majority of two-thirds of the House of Representa­tives upon proven inability to perform functions or proven misbehavio­ur.

The associatio­n noted that the method of appointmen­t “falls short of ensuring complete independen­ce in the role of the AG”.

“In order to reflect his/her quasi-judicial role, allow for an effective remedy and help address lack of confidence in the judicial system, the method of appointmen­t should be altered: the AG’s appointmen­t, therefore, should be made by the Judicial Appointmen­ts Committee within the Commission for the Administra­tion of Justice.”