Whenever there is a suspicious or violent death, the government is obliged to launch an independent inquiry under the European Convention for Human Rights. But the follow-up to the outcome of that inquiry is a purely political decision that often leaves people questioning if there is anything to hide.
Last month, the government published 10 pages of the 72-page inquiry report into the femicide of Bernice Cassar who was shot in the head on her way to work on November 22.
Cassar had filed multiple police reports against her ex-husband Roderick who was charged with her murder. Days before she was killed, her lawyer, pleaded with police to take action against him for breaching a protection order.
Following the crime, the government appointed Judge Geoffrey Valenzia to carry out an independent inquiry and examine whether authorities were or should have been aware that Cassar’s life was in danger and if there were any failings in implementing domestic violence law. The terms of reference did not mention anything about making the inquiry’s report public.
Freedom of information can be curtailed, if only to the extent that it is reasonably necessary to guarantee a fair trial- Judge Giovanni Bonello
Valenzia found the State had failed her and this boiled down to lack of resources and the workload of the police and law courts. He called to action the countless recommendations made over the years to address domestic violence shortcomings.
The pages released to the media include Valenzia’s recommendation that only the conclusions and recommendations of the inquiry be made public so as not to prejudice the ongoing criminal proceedings.
Ensuring accountability and transparency
Constitutional lawyer Therese Comodini Cachia believes independent inquiries should be public to ensure accountability and transparency.
“The main task of these inquiries is to investigate whether State authorities have failed in the particular case and identify how public services and processes need to be reformed to prevent other cases from happening.
“Accountability is fulfilled through transparency, hence the need for public inquiries rather than secret ones,” said Comodini Cachia, a former Nationalist MEP and MP.
More could have been published
Comodini Cachia said the State has an obligation to investigate whether there are administrative failings in every case where loss of life or injury occur in circumstances similar to the ones of Bernice Cassar.
“The circumstances of this case indicate that Malta failed in its obligations to protect Bernice’s right to life and hence it violated that right. But where the inquiry is not a public one, it does not allow for much accountability of the process of inquiry, actions of public officers whose actions are inquired into and administrative processes.”
A leading criminal lawyer said while it was understandable that Valenzia would make that recommendation, it was ultimately the government’s call whether or not to publish the entire report.
“The independent inquiry has nothing to do with the criminal case. One is about criminal responsibility while the other looks into the system. If there are overlaps or parts that can prejudice the criminal case, they can be blacked out but there is no need to hide the entire report,” said the lawyer, who asked to remain unnamed.
When two human rights collide
But Judge Giovanni Bonello, who served in the European Court of Human Rights, had a different view.
“We must keep in mind the fundamental human right of ‘everyone to receive information without interference by the public authority’.
Freedom of information should be the rule. But it is not an absolute rule. There are exceptions: among others, the respect for the fundamental human rights of others, like the right to a fair trial…”
Among the express limitations to the right to freedom of information are restrictions intended to maintain the authority and impartiality of the judiciary.
“So, yes, freedom of information can be curtailed, if only to the extent that it is reasonably necessary to guarantee a fair trial. To keep a report secret because it exposes the failings of the powerful is hardly a good reason to limit the right to freedom of information,” Bonello said.
He added that in high-profile criminal cases, where popular emotion has been triggered like the murder of Cassar, this caution should not be underestimated, especially if the accused is to be judged by a jury exposed to external influences.
“Professional judges and magistrates are presumed to be immune to media leverage, but if lay jurors will be involved, it is best to act on the side of caution,” he said.
The difference between an independent and public inquiry
An independent inquiry is one appointed by the prime minister or minister to look into the state’s responsibility under the Inquiries Act with the purpose of looking into: the conduct of public officers; the conduct or management of any government department; any matter falling within the functions or responsibility of any such department or body, or otherwise concerning or affecting a service of the government.
What determines whether that independent inquiry is public (heard in the open) or not depends on the terms of reference.
Malta has only had two public inquiries: that of journalist Daphne Caruana Galizia’s murder launched two years after her murder in 2019 and published in 2021 that found that the State should shoulder responsibility for her death; and the 1996 public inquiry into allegations of bribery on a contract for new bus tickets after then Leader of the Opposition Alfred Sant published documents that suggested kickbacks were promised on a contract to install new bus ticketing machines. The inquiry had found no wrongdoing on Michael Frendo’s part.
But a 1997 review commented that “in this case it is clear that a number of irregular facts occurred, as ascertained by the Board of Inquiry, and more than one of which could amount to serious crimes; however, little has been done about them, if anything.”
The magisterial inquiry
The purpose of an independent inquiry is to look into the system and not to apportion criminal blame – that is the role of the magisterial inquiry. There need to be two criteria for a magistrate to start an inquiry: the crime carries more than a three-year jail term and the evidence requires immediate preservation. The magistrate needs to receive a request from the police or from a private citizen following a report, information or complaints.
Magisterial inquiries are secret and proceedings are carried out behind closed doors. The findings, however, could be divulged following a request made to the Attorney General for a copy of the conclusions, but this is at the discretion of the AG.