Updated 10.52am with family reaction below -
The Council of Europe’s Commissioner for Human Rights has written to Prime Minister Joseph Muscat urging him to drop any pending defamation suits against the family of the late journalist Daphne Caruana Galizia.
In a letter sent to Dr Muscat last week, Dunja Mijatović wrote that the 30 civil defamation suits that still stood against the murdered journalist not only raised issues of concern for the Caruana Galizia family but also to the protection of media freedom and to the rule of law on the island.
In his reply, Dr Muscat said the government could not “interfere in, abolish or truncate” civil action because it would raise issues on the “right to a fair trial under the European Convention of Human Rights”.
The Caruana Galizia family also reacted, recalling that when Dr Muscat said that he would drop his cases if the family accepted the findings of the Bugeja inquiry, they said they will not concede to extortion by public servants. "Our position on not accepting blackmail will never change," the family said.
Dr Muscat is among those who launched defamation proceedings against Ms Caruana Galizia, who died in a car bomb explosion in October 2017.
He said he would “be ready to drop this libel case if the Caruana Galizia family makes a declaration to the effect that they accept the findings of the Egrant Inquiry”. The inquiry did not find any evidence that the Prime Minister’s wife owned the Panama company, as had been alleged by the murdered journalist.
The letter is the latest criticism by the Council of Europe levelled at the government. It has condemned the state of rule of law in Malta, raised concerns about the investigation into Ms Caruana Galizia’s death and called for the government to establish a public inquiry into the assassination.
The deadline for that expires next Thursday but the government has not committed to it.
Three men have so far been charged with carrying out the assassination but the masterminds remain at large.
In her correspondence with Dr Muscat, the commissioner notes that, at the time of her death, the late journalist was facing more than 40 civil and criminal libel suits.
While the criminal cases were closed, the commissioner noted that some 30 civil defamation cases continued posthumously against the Caruana Galizia family.
Many of the court cases were lodged by public officials
In defamation suits, the burden of proof lies with the respondent (the journalist) and the commissioner writes that, in this case, the family could be expected to reveal in court information about sources or Ms Caruana Galizia’s journalistic work.
Several of the contentious claims that are subject to court proceedings, the letter adds, originated from Ms Caruana Galizia’s investigative work dealing with allegations of corruption.
“It is my view that in cases involving matters of public interest such as those concerning corruption, Maltese legislation should permit the courts to take a more balanced approach and consider the reversal of the burden of proof,” the letter reads.
The commissioner also told the Prime Minister that the cases put “unwarranted psychological and financial pressure” on the Caruana Galizia family.
Continuing these cases, “many of which were lodged by public officials including yourself”, the commissioner told Dr Muscat, looked like intimidation of a family dealing with the loss of a loved one. It also raised questions about the authorities’ commitment to finding and bringing the masterminds to justice.
The commissioner said the harsh reality endured by the family stood as an ominous warning to all journalists in Malta.
She urged the authorities to repeal the legal provisions that allowed defamation cases to be passed on to the heirs of deceased journalists, arguing that these had a “chilling effect” on investigative journalism.
Taking on these matters, the commissioner concluded, would be a sign of Dr Muscat’s and of the government’s commitment to respect freedom of expression and to safeguard the rule of law.
In his response, Dr Muscat said his government had made efforts to regulate defamation action through the “progressive and forward-looking” Media and Defamation Act, which came into force last year.
He pointed out that it abolished criminal libel, capped the maximum amount of damages in a civil case to €11,600 and stopped the filing of multiple libel actions against journalists.
Prior to the adoption of the law, the OSCE had not raised the issue of the possibility of libel action against the heirs of a deceased journalist, he said.
“I have also been advised that the abolition of a civil action without compensation upon the death of a defendant in libel would raise issues relating to, inter alia, the right to a fair trial under the European Convention of Human Rights.
“This in all effect means the government cannot interfere, abolish or truncate civil actions started by third parties and private citizens against the heirs of a deceased journalist who would have accepted the inheritance.”
On his own pending civil action against Ms Caruana Galizia’s family, he said he would drop the case if her relatives accepted the findings of the Egrant Inquiry.
“This independent inquiry, presided over by a magistrate, had exonerated me and my family from very serious accusations levelled against us by Ms Caruana Galizia and found that the documents that were supposed to prove wrongdoing were forged,” Dr Muscat said.
Family reaction: We will not bow to blackmail
In a reaction, the Caruana Galizia family said the family would not "concede to extortion by our public servants" or accept "blackmail".
They added that the family "do not have access to the whole inquiry report" and listed the following missing sections:
a) testimony given by Daphne Caruana Galizia before the said magistrate;
b) testimony given by (whistleblower) Maria Efimova before the said magistrate;
c) testimony given by (Mossack Fenseca employee) Jacqueline Alexander and whether she confirmed or
denied signing a trust document naming the plaintiff Michelle Muscat as the company’s ultimate beneficial owner;
d) testimony given by (Nexia BT officials)Karl Cini and Brian Tonna about the holder of bearer
share certificates representing 99% of the equity in Egrant Inc. and in whose name they were held;
e) reports by the forensic accountants appointed by magistrate Aaron Bugeja
to examine and analyse the operational database, accounts and archives of Pilatus Bank Ltd.
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