GRECO verdict on Malta: insufficient progress

Weak tools against corruption

Malta has failed to introduce legislation giving criminal investigation bodies the authority to seek and use special investigative techniques such as wiretaps in the investigation of corruption offences, empowering the judicial authority to authorise their use, and making the evidence obtained thereby admissible in court.

While the Maltese authorities replied that the Security Service is already equipped with the necessary tools to prevent and detect serious crimes, Greco expressed its disappointment that the Maltese authorities have not even conducted a legal analysis of what could be a possible way forward on this matter.

GRECO stressed the importance of the effective use of special investigative techniques when prosecuting corruption “owing to the complexity of obtaining evidence regarding this type of crime”.

In its original evaluation GRECO had insisted that investigations on corruption can be based on a “reasonable suspicion” which “does not require that evidence is readily submitted” to the prosecution. The Maltese authorities replied that in the Maltese legal system, investigations have to be based on a “reasonable suspicion” that an offence may have been committed and this requires the “existence of information or proof, reasonably indicating that the offence may have taken place”. Greco noted that authorities have provided a few examples of specific cases relating to corruption, where investigations have been initiated upon receiving information raising “reasonable suspicion”, describing this as a “crucial first step in ensuring that corruption cases are duly investigated”.

The report also laments the absence of an “over-arching anti-corruption strategy” based on a risk assessment in respect of the Government and its top executive officials. It also expressed disappointment that the Commissioner for Standards in Public Life has not been vested with any power to impose additional sanctions when abuse is discovered.

No prosecutor to hound corruption

Despite legal reforms the Police still retains “considerable prosecutorial functions in criminal proceedings”, in parallel to the Attorney General’s Office.

And in contrast with the recommendations of the Venice Commission, reforms fell short of setting up the office of an independent public prosecutor who should be responsible for all public prosecutions including those against corruption.

The recently introduced possibility of seeking judicial review against decisions not to prosecute is welcomed as a step to ensure that corruption offences do not go unpunished. However, this promising legal avenue is cut short by limiting it only to cases where a corruption report has been submitted by the Commissioner for Standards in Public Life, the Ombudsman and the Auditor General.

And while noting that the new procedure for the appointment of the Attorney General is described as a “clear improvement of the previous system”, the government can still exert considerable influence on the Attorney General through this procedure.

This is because the procedure still gives a predominant role to the Prime Minister, who is only required to “give due consideration” to the advice from an appointment panel, established by the Minister of Justice who is subordinate to the Prime Minister.

Moreover contrary to recommendations made by the Venice Commission the Permanent Commission against Corruption has retained jurisdiction regarding investigations into corruption cases, which it can then refer to the Attorney General for prosecution. And while new prosecutions into corruption cases initiated by the Attorney General’s Office are “encouraging” “with so many investigations into high-profile corruption cases pending over a few years in Malta by now, the urgency for making the necessary systemic changes is at its peak”.

No rules against lobbyists

GRECO wants clear rules to govern any contacts between persons with top executive functions (including ministers and their persons of trust) and lobbyists/third parties that seek to influence the public decision-making process.

It also wants a system through which such contacts and the subject matters discussed are disclosed in the public.

The Maltese authorities replied that they are still examining a number of proposals for regulating lobbying by third parties.

And while the Commissioner for Standards the Commissioner has drafted a code of ethics for Ministers and MPs which foresees a transparency registry and has also proposed a separate law to regulate lobbying, the Maltese authorities have told Greco “that the matter of regulation of lobbying will form part of the discussions at the forthcoming Constitutional Convention”.

While welcoming the proposal made by the Standards Commissioner for a law to regulate lobbying, Greco concluded that at present “there are no rules or legislation to regulate contacts between the people in top executive positions and lobbyists in place, not even at the drafting level”.

Too many persons of trust

The GRECO report reiterated its call on the Maltese government to limit the number of “such discretionarily-appointed officials” to an absolute minimum. But information submitted by the Maltese authorities does not indicate that the number of persons of trust have decreased from the around 700 persons employed in a position of trust at the time of the evaluation. And while welcoming amendments adopted in April 2021, which provide a more detailed legal definition of “persons of trust”, GRECO notes that persons of trust are still not considered to be an integral part of the civil service and subject to the same integrity rules.

GRECO has also recommended that the current regime of asset and interest declaration is extended to persons of trust who are associated with a minister’s decision-making and that these declarations should also cover spouses. But this recommendation still has to be enacted.

No system to regulate conflict of interests

According to GRECO, Maltese public employees are still “left to their own devices in determining whether there is a potential or actual conflict of interests, and whether they should report it”. And apart from the initial declaration by applicants for headship positions, no procedures and deadlines have been put in place for solving situations of conflict of interest. And while the Public Service Management Code does refer to “the responsibility of the employee to inform one’s Permanent Secretary” of a conflict of interests, a policy on the management of conflict of interest in the public sector has yet to be established.

The Maltese authorities have informed GRECO that discussions are under way regarding the drafting of a policy on the management of conflict of interest in the public sector. Moreover plans to establish an Integrity Unit to support public office-holders in solving ethical dilemmas have not materialised.

Progress in regulating ‘Revolving doors’

GRECO welcomed new provisions addressing the issue of “revolving doors”, notably the new Public Administration Act that prohibits employment in the private sector of public employees holding posts, which involve regulatory or inspection functions for a period of up to two years from termination of public employment. This prohibition applies to employment with any private entity dealt with during the period of five years preceding termination of public employment. The breach of this prohibition carries a civil contractual penalty equivalent to three years’ salary.

But according to GRECO the effectiveness of this supervision can only be evaluated once the system has been operational for some time.

The report also refers to new safeguards, triggered by the move of a prosecutor from the Attorney General’s Office to the defence team of Yorgen Fenech, the primary suspect in the assassination of the investigative journalist Daphne Caruana Galizia. In this way prosecutors are prohibited from entering any negotiations with a prospective private client and in any preparations to act on behalf of any private client, prior to tendering their resignation.

Policing the Police

The report welcomes the new framework for reporting wrongdoings within the Police Force, even when this is done anonymously. But GRECO expressed disappointment that the provisions of the Protection of Whistleblowers Act do not apply to police officers. While the reporting possibilities have improved, while the protection measures (for example, retaliation against police officers) remain insufficient.

Police currently have can report alleged violations of integrity rules and corruption either by reporting directly to their superiors, through confidential reporting to the Integrity Officer, or by reporting anonymously via the Break the Silence section of the Police Force’s intranet system. Anonymously submitted reports are to be followed up within 48 hours.

Information submitted by the Maltese authorities reveals that 11 reports have been received so far through confidential reporting, but none have been submitted openly to a superior or through the system created for anonymous reports. Of these, six cases have been acted upon and in one of them disciplinary action has been taken. In another five cases additional information is being gathered.

The report welcomes the new Police Code of Ethics, which bans officers from holding a business interest or engage in side work, which may conflict with their police responsibilities. But GRECO described the range of allowable activities, which a police officer can partake in as “rather broad” and thus fails to meet its demand for “more explicit and strict criteria”,

Activities which are deemed compatible with police work include working in a retail outlet; working in a garage; working for a construction company or electrical contractor; working for a catering company; working at a garden centre; working as a real estate agent; letting an accommodation providing that the letting is not to a subordinate or superior; writing books or articles not related to policing activities and even directorship of a company, unless the company is involved in incompatible business activities. On the other hand the list of precluded activities includes holding a licence to run wines and spirit shops, including within political party, football and band clubs, or betting outlets; working in licensed premises where there would be a conflict of interest with policing duties; legal practice, private investigations and any activity that mirrors police responsibilities like private security.

Other positive steps include the new procedure for the appointment of the Police Commissioner, new provisions regarding guidance on gifts and the role of the newly introduced Integrity Officer in the police force.

What is GRECO?

The Group of States against Corruption is the Council of Europe’s anti-corruption monitoring body with its headquarters in Strasbourg, was established in 1999, as an enlarged partial agreement by 17 Council of Europe member States.

GRECO, which is also open to non-European States, currently has 50 members (49 European States and the United States of America).

Since August 2010, all Council of Europe members have been members of GRECO. Membership in GRECO is not limited to Council of Europe member States, any state which took part in the elaboration of the enlarged partial agreement, may join by notifying the Secretary General of the Council of Europe. Moreover, any State which becomes party to the Council of Europe’s Criminal or Civil Law Conventions on Corruption automatically accedes to GRECO and its evaluation procedures.

GRECO launched on 20 March 2017 its Fifth Evaluation Round which focuses on “Preventing corruption and promoting integrity in central governments (top executive functions) and law enforcement agencies”. In this round GRECO will monitor the measures that states have in place to prevent and combat corruption in functions such as those of heads of State, heads of central government, ministers, as well as other political appointees who exercise top executive functions such as deputy ministers, State Secretaries, heads and members of a minister’s private office and senior political officials. With regard to these functions, GRECO will look into issues such as conflicts of interest, revolving doors, declaration of assets and accountability mechanisms.

The Fouth Round covered corruption prevention in respect of MPs, Judges and prosecutors, covering ethical principles, rules of conduct and conflicts of interest; prohibition or restriction of certain activities; declaration of assets, income, liabilities and interests; enforcement of the applicable rules; awareness.