Omtzigt report: ‘Unsatisfactory’ progress on Malta rule of law and Council of Europe measures

Yorgen Fenech had British lawyer tasked to approach Dutch MP Peter Omtzigt • Government reacts: Resolution fails to provide a clear picture of all the work undertaken

Dutch MP Pieter Omtzigt
Dutch MP Pieter Omtzigt

The Dutch MP Pieter Omtzigt, rapporteur for the Council of Europe’s resolution on Daphne Caruana Galizia’s assassination and the rule of law in Malta, has decreed that Malta has failed to implement the demands of the Council’s parliamentary assembly. 

Omtzigt is charged with following-up on the progress of the resolution’s implementation, which addressed Malta’s constitutional and institutional guarantees of the rule of law; allegations of high-level corruption and impunity, on which Caruana Galizia had reported; and the investigation into the murder of Caruana Galizia and prosecution of those suspected of being responsible. 

In his concluding remarks, Omtzigt said Malta’s strengthening of rule of law had been “unsatisfactory overall, with mixed results.” 

“The current reform package is flawed and incomplete in important respects, the government is not willing to take the urgent action necessary to correct it, and the government demonstrates no appreciation of the need for an open, inclusive and genuinely democratic reform process. 

He said Malta had not “ended impunity” for high-level corruption. “Despite new laws, new officials and even a few arrests, no-one has been prosecuted – it is as simple as that.” 

He added that the criminal proceedings into the Caruana Galizia assassination were extremely complicated and lengthy, without clarity and certainty. “On the contrary, there is great confusion. Several circumstances have given rise to doubts over the integrity and reliability of procedures. The public inquiry has been incredibly illuminating, but its independence has been attacked, and it will lead only to recommendations, not to verdicts.” 

The CoE’s committee on legal affairs and human rights, endorsing Omtzigt’s report, called on the Maltese government to respect the public inquiry’s independence fully, and to refrain from any attempt to impose an arbitrary time-limit on its work. 

Omtzigt revealed that in September 2020, he was contacted, for the second time, by Wayne Jordash QC, a British lawyer instructed by Yorgen Fenech. “Mr Jordash asked to meet me in order to discuss his claims that Mr Fenech’s right to a fair trial had been violated by prejudicial statements made by various individuals in Malta. As the substance of these claims was sub judice in Malta, I declined Mr Jordash’s invitation.” 

Omtzigt had previously referred to eight situations relating to alleged high-level corruption and called on the Maltese authorities to “end the prevailing climate of impunity by robustly investigating and prosecuting those suspected of being involved in or benefitting” from them. 

According to the MP, the Police Commissioner said he had been notified of the results of a magisterial inquiry into the allegations of kickbacks on which the police is following up with more investigations as instructed by the inquiring magistrate. 

Four persons, including those Omtzigt refers to in his letter, have been put on police bail pending further investigations. 

“Although not specified, I assume that this refers to the ‘golden passports’ affair concerning payments of €100,000 to Keith Schembri from Brian Tonna, auditor of Schembri’s companies and owner of a golden passport agency, that allegedly originated with three applicants for golden passports,” Omtzigt said. 

Apart from this, the letter from the Police Commissioner states only that the police are “investigating various allegations that were put forward by Ms Daphne Caruana Galizia… there are various instances where the Malta Police is collaborating with inquiring magistrates who have been entrusted or asked to investigate certain allegations.” 

The Police Commissioner further notes that the police Financial Crime Investigations Department has been reinforced under new leadership and insists that the police “will not rest until investigations into serious allegations are concluded.” 

Omtzigt described the public inquiry as having produced “spectacular evidence of corruption and misconduct in public office”, when compared with the magisterial inquiries and police investigations. 

The MP complained that despite revelations made in the compilation of evidence against Yorgen Fenech, Keith Schembri remained at liberty, even though he was suspected of multiple attempts to pervert the course of justice and, reportedly, accused of direct involvement in the murder plot. 

“Mr Fenech testified that his relationship with Mr Schembri was ‘fraternal’. Mr [Joseph] Muscat remained in office until 13 January 2020, a crucial period for the investigation, despite allegations that multiple members of his office had engaged in suspicious activities with Mr Fenech and Mr Theuma. 

“It has since emerged that in February 2019, Mr Fenech attended Mr Muscat’s birthday party and gave him bottles of wine worth thousands of euros. On other occasions, he had given him watches worth tens of thousands of euros. For much of 2019 – a period during which Mr Fenech was a suspect in the murder case and, on Mr Muscat’s instructions, under covert surveillance – Mr Fenech, Mr Schembri and Mr Muscat exchanged hundreds of messages through their own private WhatsApp group. During the same period, Mr Fenech also exchanged hundreds of WhatsApp messages with Mr Mizzi and with current minister for justice, Edward Zammit Lewis.”

Government reaction

The Maltese government said it had remained in constant contact with Omtzigt throughout the entire period when he was rapporteur and provided continuous updates on the situation of the rule of law in Malta.

“However, the resolution fails to provide a clear picture of all the work undertaken by this Government. 

“Throughout the past months, the Administration led by the Prime Minister Robert Abela, carried out unprecedented Constitutional and Institutional reforms. These reforms were positively received by the Venice Commission within the same Council of Europe, and the European Commission. 

“This was the case, following a unanimous Parliamentary vote by the Maltese House of Representatives on a diverse number of amendments to our constitution and other legislation.  

“Key among these reforms are the two fundamental Constitutional amendments, the method of appointment of the President of the Republic, as well as, of the Chief Justice respectively, both of whom now require a two-thirds parliamentary majority.” 

The government said this process had also led to a change in the method of appointments for Judges and Magistrates. “Together with a constitutional change concerning the discipline of the same Members of the Judiciary, the latter is no longer under Parliamentary scrutiny but now falls within the responsibility of the Commission for the Administration of Justice.” 

The government said important reforms were undertaken with regards to the Office of the Attorney General, even after same office has been divided, thereby leading to the establishment of the Office of the State Advocate. Also implemented is the strengthening of the Permanent Commission against Corruption, the Ombudsman and the Auditor General. 

“In the preceding months, for the first time, the Commissioner of Police was appointed following a public call which was led by the Public Service Commission. Once a candidate was shortlisted, he was also subject to a Parliamentary scrutiny process. It is noteworthy to outline that recently the work and efforts of the Malta Police Force have also been recognised by international entities as well as other countries, notably, the United States.  

“The Maltese Government reiterates that, whilst this work does not represent the completion of all processes, one must recognise that the mentioned positive changes serve as a strong and solid foundation for other reforms that have yet to be undertaken during the Constitutional Convention chaired by the President of Malta.”