Days after a magistrate concluded her inquiry into the Vitals hospitals deal, the man at the heart of the scandal appealed for the police commissioner to call him in for questioning.

But Joseph Muscat, his chief of staff, Keith Schembri, ex-minister Konrad Mizzi and dozens of others were not interrogated by the police before serious criminal charges were filed against them in court.

This rare scenario has raised questions over whether suspects have the right to be questioned before charges are brought against them.

Times of Malta spoke to several criminal lawyers to understand what the law has to say.

What, exactly, would the inquiry have decided?

Magisterial inquiries are secret so it remains unknown what exactly the inquiry has to say about Muscat and others’ role in the 2015 deal to hand three State hospitals over to the management of Vitals Global Healthcare.

However, when there is a magisterial inquiry into potential criminal allegations the magistrate concludes one of three things:

There is no case to be answered

The police are to continue investigating

Charges are to be issued

Do the police have to call in a suspect, or future-accused, for questioning before the official charges are filed in court?

Technically no. If the magistrate has ordered that the charges are to be issued, there is nothing stopping the police from calling suspects in for questioning.

However, there is nothing in the law obliging them to do so either. Nowhere in the law does it say that police must question or interrogate a person before issuing charges. This applies to people who are charged under arrest or by summons.

Muscat and others facing charges including money laundering, corruption, bribery and a host of other serious crimes will receive a summons informing them to turn up in court to answer to the charges brought against them.

What the law does say is that if a person is arrested and questioned, that person must be granted access to a lawyer and informed about why he or she is being investigated. But this only applies to arrests.

Leading defence lawyer Franco Debono said: “We fought for the right to legal assistance because the taking of statements by the police before arraignments was considered obvious, taken as a given… So much so that if you ask criminal lawyers and prosecutors over the last 20 years if they know of cases which were arraigned without previous police statements the reply would be ‘no’.”

Is it common that people are not questioned before being charged?

Lawyers spoken to all agreed that this is “very rare”. While there is no legal obligation to call people in for questioning, doing so was common practice and is “advisable”.

One lawyer said it is always advisable to hear both sides of the story as, by doing so, the police get a fuller picture of the facts of the case. Depending on the full picture, the prosecution would then better decide which charges to issue. If the prosecution felt it had enough evidence, it might not feel the need to question a suspect. But this was “very uncommon”.

Is it unconstitutional not to question a person before issuing charges?

According to Malta’s Constitution, procedures need to be carried out according to law. The law does not state that a person must be questioned.

Observing the law is the minimum requirement to ensure that human rights are not breached. However, an injured party can still challenge the law itself and argue that it breaches human rights. If that case is won, a legal amendment would follow.

Can the prosecution go against the magisterial inquiry’s decision?

This is a bit of a grey area. According to article 569 of the Criminal Code, when the magistrate communicates the inquiry to the police commissioner, the commissioner “may consult with the Attorney General who may direct that no proceedings are to be taken or that the proceedings to be taken are to be for a charge or for charges different from those specified by the magistrate”.

But this part of the law is now outdated since. as from 2020, following legal amendments, it is now the Attorney General who leads the prosecution into major crimes, which includes economic crimes like those being faced by Muscat and others.

So there is a gap in the wording of the law allowing the AG to challenge an inquiry, unless asked to do so by the police commissioner.

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