EUROPEAN COMMISSION Brussels, 30.9.2020 SWD(2020) 317 final COMMISSION STAFF WORKING DOCUMENT 2020 Rule of Law Report



Country Chapter on the rule of law situation in Malta Accompanying the document COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2020 Rule of Law Report













The rule of law situation in the European Union {COM(2020) 580 final} - {SWD(2020) 300 final} - {SWD(2020) 301 final} - {SWD(2020) 302 final} - {SWD(2020) 303 final} - {SWD(2020) 304 final} - {SWD(2020) 305 final} - {SWD(2020) 306 final} - {SWD(2020) 307 final} - {SWD(2020) 308 final} - {SWD(2020) 309 final} - {SWD(2020) 310 final} - {SWD(2020) 311 final} - {SWD(2020) 312 final} - {SWD(2020) 313 final} - {SWD(2020) 314 final} - {SWD(2020) 315 final} - {SWD(2020) 316 final} - {SWD(2020) 318 final} - {SWD(2020) 319 final} - {SWD(2020) 320 final} - {SWD(2020) 321 final} - {SWD(2020) 322 final} - {SWD(2020) 323 final} - {SWD(2020) 324 final} - {SWD(2020) 325 final} - {SWD(2020) 326 final}



Abstract A number of significant reforms of the Maltese justice system have recently been unanimously adopted by Parliament. In particular, reforms of the system of judicial appointments and of disciplinary proceedings aim at improving the checks and balances by limiting the role of the Prime Minister and Parliament. These reforms aim at strengthening judicial independence and the system of separation powers and at responding to some of the Venice Commission’s December 2018 recommendations and to recommendations from the European Commission and the Council in the framework of the European Semester. The Venice Commission overall welcomed the plans for reforms and is currently preparing an additional opinion on the legislative texts of these reforms. A Prosecution Service, under the authority of the Office of the Attorney General and fully separate from the State Advocate, is being set up. As regards the efficiency of the justice system, important concerns remain, with judicial proceedings being very long at all levels and in all categories of cases. Deep corruption patterns have been unveiled and have raised a strong public demand for a significantly strengthened capacity to tackle corruption and wider rule of law reforms. A track record of securing convictions in high-level corruption cases is lacking. A broad reform project has been launched to address gaps and strengthen the institutional anti-corruption framework, including law enforcement and prosecution. The reform includes new rules on the appointment of the Police Commissioner, the transfer of prosecution responsibilities - including for corruption-related cases - from the police to the Attorney General, a reform of the Permanent Commission Against Corruption, and new provisions to allow appeals against non-prosecution by the Attorney General. The effective implementation of these reforms will show the extent to which the recommendations from the Venice Commission and GRECO, in addition to those from the European Commission, have been addressed. The Constitution of Malta provides for freedom of expression and media freedom. The assassination of Malta’s foremost investigative journalist Daphne Caruana Galizia in October 2017 was widely seen as an attack on freedom of expression and triggered concerns about media freedom and the safety of journalists in Malta. Other areas of concern include the effective independence of the media regulator, as well as legal and online threats to investigative journalists. The ownership, control or management by the two main political parties represented in Parliament of multiple Maltese media outlets and broadcasters continues to have a significant bearing on the Maltese media landscape. As regards checks and balances, a number of reforms have recently been adopted by Parliament. In particular, new rules on the election and removal of the President of the Republic have been adopted, as well as reforms reinforcing the role of the Ombudsman. Other draft legislation has been tabled on limiting the role of the Prime Minister in the appointment of a number of independent commissions. These reforms aim at strengthening the overall system of checks and balances, and at responding to some of the recommendations made by the Venice Commission, which is also preparing an additional opinion on the legislative texts of these reforms. The need for other possible constitutional reforms is being considered, including on the functioning of Parliament. Civil society organisations are playing an increasing role in the public debate. I.Justice System The Maltese justice system is influenced by both the continental and the common law legal traditions. Courts are divided into Superior and Inferior courts. Superior Courts are composed of judges and include the Civil Court, the Criminal Court, the Court of Appeal, the Court of Criminal Appeal and the Constitutional Court. Inferior Courts are composed of magistrates and include the Court of Magistrates (Malta) and the Court of Magistrates (Gozo). The judiciary is headed by the Chief Justice who also presides the Constitutional Court. Judicial independence is enshrined in the Constitution, which guarantees the security of tenure of judges and magistrates. A Commission for the Administration of Justice supervises the work of the judiciary. A number of specialised tribunals exist, adjudicating in specific areas. A fully separate Prosecution Service is being set up. The Bar Association (Chamber of Advocates) is the independent and self-regulated professional body of lawyers. In July 2020, Parliament adopted a number of constitutional reforms in the justice area. Independence The reform of the system of appointments of judges and magistrates was adopted in July 2020. In spring 2020, the Government submitted a series of proposals for reforms, including as regards the system of judicial appointments, with a view to addressing recommendations issued by the Venice Commission in December 2018. Draft legislation amending the Constitution was adopted by Parliament on 29 July 2020. All of these proposals were discussed with and assessed by the Venice Commission, whose Opinion on the legislative texts is however still pending. Under the previous framework, the appointment of judges and magistrates was done by the President of Malta “acting in accordance with the advice of the Prime Minister”. A Judicial Appointments Committee established whether candidates fulfilled the criteria for judicial appointment, but did not rank candidates or express any preference for a candidate. The role of the Judicial Appointments Committee was to identify a pool of candidates for the judiciary, from which the Prime Minister had discretion to select candidates to be appointed as judge or magistrate, while the role of the President was purely formal. According to the new legislation adopted by Parliament, the composition of the Judicial Appointments Committee has been revised, whereby more than half of its members now belong to the judiciary. Calls for individual vacancies for judicial posts will be published. The Judicial Appointments Committee will propose the three most suitable candidates for a vacancy directly to the President of the Republic, who will select the judges or magistrates from the names of the candidates referred to him. The evaluation criteria have been enshrined in the Constitution. These reforms contribute to strengthening judicial independence, taking into account Council of Europe recommendations. This issue had also been raised by the European Commission and the Council in a country-specific recommendation in the framework of the 2020 European Semester, as well as by the European Parliament. In its Opinion of 19 June 2020, the Venice Commission overall welcomed the plans for reforms on judicial appointments, while recalling the need for further steps to achieve an adequate overall system of checks and balances in line with its December 2018 Opinion. Moreover, the Venice Commission is currently preparing an additional opinion on the legislative texts of these reforms. As regards the Chief Justice, according to the reform, the appointment is to take place with the support of two-thirds of the members of Parliament, without the involvement of the judiciary or of the Judicial Appointments Committee. Given the various roles of the Chief Justice (President of the Constitutional Court, President of the Court of Appeal, presiding in both appeal panels), as well as the important responsibilities of the Chief Justice in the administration of the justice system (Chair of the Judicial Appointments Committee, member of the Commission for the Administration of Justice responsible for judicial discipline), the Venice Commission underlined the importance of the appointment of the Chief Justice being depoliticised as much as possible. Parliament also adopted the reform as regards the procedure for dismissal of judges and magistrates. Under the previous framework, decisions on removal from office of judges and magistrates were in the hands of Parliament. The Venice Commission recommended a depoliticisation of the procedure. According to the reforms, decisions on removal from office of judges and magistrates will be the prerogative of the Commission for the Administration of Justice, in majority composed of members of the judiciary. The Parliament will no longer be involved in decisions on removal from office of judges or magistrates. Moreover, the reforms provide for appeals against dismissals to the Constitutional Court. These reforms strengthen judicial independence, taking into account the Council of Europe’s Recommendations . In its opinion of June 2020, the Venice Commission welcomed the plans for reforms and it is currently preparing an additional opinion on the legislative texts of these reforms. The level of perceived judicial independence is around average. This applies both to the perception of judicial independence among the general public (52% fairly or very good), and to the perception among companies (48% fairly good or very good). A fully separate Prosecution Service is being set up. Until recently, the majority of prosecutions was carried out by the police, while the office of the Attorney General was prosecuting directly only the most serious crimes. Moreover, the Attorney General was combining prosecutorial functions with the role of legal adviser to the Government, representing the State in judicial proceedings, which raised concerns regarding the separation of powers. In 2019, the Government announced its intention to create a separate Prosecution Service, responding to Venice Commission recommendations. As a first step, the Office of State Advocate was created to take over the non-prosecutorial functions that the Attorney General performed in the past. The State Advocate acts as the legal adviser of the Government. The Attorney General will be responsible for the prosecution of all offences. The Government is planning to table a Bill in Parliament in October 2020 to extend the prosecutorial functions of the Attorney General to less serious offences as well. The transfer of cases from the police to the Prosecution Service will take place progressively, starting with the summer of 2020, and should eventually result in a shift of all prosecutions to the Attorney General. Therefore, it will still take time before the reforms of the Prosecution Service can become fully effective. As regards the Attorney General, in July 2019, Parliament enacted a law which provides for a new appointment procedure. The law requires the Prime Minister to give due consideration to the recommendations of an Appointment Commission in deciding upon his recommendation to the President in terms of Article 91 of the Constitution for the appointment of the Attorney General. In line with the new procedure, on 8 September 2020, the Prime Minister accepted the candidate recommended by the Appointments Commission as Malta’s Attorney General. These changes add checks and balances compared to the previous appointment procedure. In practice, the appointment of the Attorney General still remains predominantly under the power of the Prime Minister, which has been raised as an issue. A high number of specialised tribunals operate in different areas. These tribunals include the Refugee Appeals Board, Environment and Planning Review Tribunal, the Consumer Claims Tribunal, the Competition and Consumer Appeals Tribunal, the Industrial Tribunal, the Information and Data Protection Appeals Tribunal, the Mental Health Review Tribunal, the Patent Tribunal, the Police Licences Appeals Tribunal, the Panels of Administrative Review Tribunals and the Prison Appeals Tribunal. The Venice Commission has raised concerns regarding these specialised tribunals, considering that they do not enjoy the same level of independence as that of the ordinary judiciary. Quality Some measures to improve the quality of the justice system have been adopted. In particular, the following measures aimed at further improving the use of IT tools in courts have been taken: (i) e-filing and the electronic payment of fees is being extended to more civil courts; (ii) free online access is granted to citizens and legal professionals in order to view the acts related to their cases; and (iii) the e-Courts platform has been created, which offers a host of justice-related services to the general public and legal professionals. A digital strategy and an action plan are being prepared by the Government to strengthen the use of technology in the justice system. As regards judicial training, the budget for the Judicial Studies Committee has been increased, which would allow for expanding the range and quality of training services. No judicial trainings were registered in 2018 as regards a number of important judicial skills. The lack of training on judicial ethics remains an issue. The system of allocation of cases is under review. Under the current framework, the registrar assigns cases as directed by the Chief Justice. The objective of the review is to establish a new system that reflects the complexity of registered cases, allowing for a better distribution of the caseload and increasing the level of efficiency. Efficiency The duration of court proceedings remains among the longest in the EU. Despite some improvements in the last years, the length of proceedings at all levels and in all categories of cases remains very long. For litigious civil and commercial cases in first instance, courts in 2018 required 440 days to complete a case on average, which is among the longest case times in the EU . This is further aggravated by lengthy proceedings in second instance (1,120 days on average). Similarly, the length of proceedings in administrative courts remains a concern (1,057 days on average), despite some improvements in the last years. Clearance rates also indicate that courts are currently operating at the limit of their capacities , with Malta being among the Member States with the lowest number of judges per capita. The average length of first-instance money laundering cases (more than 2000 days) is also a particular concern and continued to deteriorate in 2018. Courts were closed and time limits were suspended from 16 March 2020 by order of the Superintendent of Public Health as part of the emergency measures to face the COVID-19 pandemic. On 5 June 2020, this order was repealed.

II. Anti-Corruption Framework The anti-corruption institutional framework consists of several authorities. The Permanent Commission Against Corruption is responsible for corruption prevention and carrying out administrative investigations into corrupt practices. The Commissioner for Standards in Public Life can consider whether Ministers, Parliamentary Secretaries or other members of Parliament have acted in ways that are against the law, in breach of any ethical or other duty, or constitute an abuse of power. Investigation and prosecution of corruption offences have so far been predominantly under the responsibility of the Police (the Economic Crimes Unit); however, as a result of the ongoing reforms (see Section I), the Attorney General will take over the prosecution of all offences carrying a conviction of more than two years imprisonment, including economic crime, corruption and money-laundering. Other bodies involved in the fight against corruption are the Financial Intelligence Analysis Unit (FIAU) and the Internal Audit and Investigations Department. The latter conducts internal audits and investigations within all governmental departments and agencies. Corruption offences are included in the Criminal Code. In July 2020, Parliament adopted a number of reforms as regards the anti-corruption framework. The ongoing investigation and separate public inquiry into the assassination of investigative journalist Daphne Caruana Galizia have unveiled deep corruption patterns and raised a strong societal demand for significantly strengthening the capacity to tackle corruption and wider rule of law reform. Malta scores 54/100 in the Transparency International Corruption Perception Index and ranks 14th in the EU and 50th globally . 89% of Maltese respondents to a Eurobarometer survey perceive corruption in Malta to be widespread (EU average 71%) and 54% of people feel personally affected by corruption in their daily lives (EU average: 26%). As regards businesses, 76% of companies consider corruption to be widespread (EU average 63%), while 60% of companies consider that corruption is a problem when doing business (EU average: 37%). At the same time, 37% of respondents find that there are enough successful prosecutions to deter people from corrupt practices (EU average: 36%) while 45% of companies consider that people and businesses caught for bribing a senior official are appropriately punished (EU average: 31%) . Changes have been adopted as regards the Permanent Commission Against Corruption (PCAC) addressing structural weaknesses, and reducing the Prime Minister’s role in appointing its members. The PCAC is responsible for corruption prevention and administrative inquiries into corruption-related reports. It conducts investigations on its own initiative or following reports it receives. Under the previous system, the PCAC reported its investigation findings to the Minister of Justice and the law did not require follow-up enforcement or prosecution. Transparency as to what cases the PCAC investigated and what recommendations had been made was also raised as a concern. The European Commission, the Venice Commission and GRECO raised concerns regarding its limited effectiveness as regards investigations, as well as regarding the dependency of the PCAC members’ appointment on the Prime Minister. The Government presented in spring 2020 proposals to change the appointment procedure. These proposals were adopted by Parliament on 29 July 2020. According to the new procedure, the chairperson of the PCAC is to be appointed by the President of the Republic, acting in accordance with a two-thirds majority resolution by Parliament. The other two remaining members of the PCAC are to be appointed by the President, acting in accordance with the advice of the Prime Minister, and with the advice of the Leader of the Opposition, respectively. Under the new rules, the investigative competences of the PCAC are extended to cover a wider scope of corrupt practices. Notably, the new legislation foresees that, where in the opinion of the PCAC, the conduct investigated is corrupt or connected with or conducive to corrupt practices, the report of the results of the investigation shall be transmitted to the Attorney General. Through the changes, the PCAC along with the Ombudsman, the Commissioner for Standards in Public Life and the Auditor General, will be able to appeal against a decision by the Attorney General not to prosecute. However, the means of the PCAC remain limited, putting into question its capacity to conduct impactful inquiries. The Venice Commission welcomed the plans for reforms in its June 2020 Opinion and is currently preparing an additional opinion on the legislative texts of the reforms. The treatment of high-level corruption cases presents shortcomings. In particular, criminal files against holders of top executive functions reportedly remain in the early stages of criminal proceedings. Despite the provision of new evidence in such cases, it remains unclear whether the relevant investigative processes have been initiated . Prosecutions with regard to crimes related to corruption are conducted by the officers of the Economic Crimes Unit within the Executive Police of Malta. As noted in the 2020 European Semester Country Report and the European Parliament resolutions, investigations by the Police have been considered fragmentary and crimes related to corruption and abuse of power were not effectively prosecuted. According to the authorities, in 2019, seven ongoing investigations into corruption involving public officials have been reported, two of which concerned high-level corruption cases. While an appeal against non-prosecution by the Police already exists, a new provision has been introduced to allow such appeals also against non-prosecution by the Attorney General . The selection and the appointment process of the Police Commissioner has been reformed, an issue also highlighted by the Venice Commission in its December 2018 Opinion. On 1 April 2020, Parliament agreed on a bill which modifies the selection and appointment process for the Police Commissioner. The Public Service Commission will be required to conduct a public call in a fully independent and autonomous manner and will propose two candidates to the Cabinet of Ministers. The Cabinet must then select a single candidate out of the two short-listed candidates. The newly proposed method also envisages that the eventually short-listed nominees would go before the Parliaments’ Public Appointments Committee in order to undergo parliamentary scrutiny. The resources and capacity of the Economic Crime Unit of the Police have been increased. Between December 2019 and September 2020, the Economic and Crime Unit witnessed a substantial increase in the number of police officers: from 58 to 98. The focus is on areas which the Police did not have the capacity to deal with in the past, including economic and financial crimes. Other areas where capacity is expected to be increased are block chain analysis capabilities, enhancement of the intelligence analysis tool and access to additional databases. The Protection of the Whistleblower Act came into force in 2013. It entails provisions for procedures, in both the private sector and in the public administration, to report improper practices. Every employer, including all Ministries, must identify a whistleblowing reporting officer to receive reports from employees who would like to make a protected disclosure of an improper practice. In turn, the whistleblowing reporting officer is to take action or – in the case of actions amounting to criminal offences – report to the Police within reasonable time. Whistleblowing can be exercised on matters which took place both before and after the law entered into force. This legislation gives protection to those who act in good faith. However, the number of whistle-blower complaints is so far rather limited. Proposals have been tabled as regards the appointment of persons exercising top executive functions. Amendments were tabled in order to ensure that the Public Service Commission, which is an independent constitutional body, makes recommendations to the President of the Republic for the appointment and removal of permanent secretaries, on the basis of clear and pre-established requirements. As concerns persons of trust, amendments were tabled in the Public Administration Act and the Standards in Public Life Act, establishing a clear legal basis for their appointment. This follows recommendations of the Venice Commission and GRECO on permanent secretaries and persons of trust . The Venice Commission is preparing an additional opinion on the legislative texts submitted to Parliament. A public consultation was launched with a view to introducing lobbying regulation, which is currently missing. The Commissioner for Standards in Public Life published a consultation paper with proposals for the regulation of lobbying. The Commissioner intends to issue recommendations for changes to the codes of ethics for Ministers and members of Parliament, as set out in the Standards in Public Life Act. The Ministry for the Environment, Climate Change and Planning has established a transparency register platform, which is already operational, as a pilot project. The Commissioner for Standards in Public Life raised concerns about conflicts of interests of members of Parliament. Since the Commissioner for Standards in Public Life started functioning in 2018, declarations of assets of members of Parliament are being scrutinised. This is the result of the Standards in Public Life Act, which entered into force on 30 October 2018. The Commissioner will examine the declarations and will also propose a revision of the details to be submitted. However, declarations are not made public, except those that belong to Ministers and Parliamentary Secretaries. As regards conflicts of interests, the Commissioner issued a decision on a complaint submitted by a member of Parliament in July 2019 relating to the potential conflict of interest of members of Parliament who hold positions within or provide contractual services to the public sector. In his case report, the Commissioner found that two thirds of backbench members of Parliament hold appointments in, or contracts with, the public sector and concluded that the engagement of backbenchers by the Government is fundamentally wrong, calling for an end to this practice. A possible reform of the statute of the members of Parliament is considered in the context of the constitutional reform process. As regards persons entrusted with top executive functions, such as permanent secretaries and persons of trust, they are not subject to the same declaratory obligations as members of Parliament. They are required to submit the basic information under the Code of ethics for public employees appended to the Public Administration Act . Persons of trust are subject to the scrutiny of the Commissioner for Standards in Public Life . III.Media Pluralism Freedom of expression is enshrined in the Constitution of Malta, as well as in the European Convention Act (Chapter 319 of the laws of Malta). The Media and Defamation Act of 14 May 2018 repealed the 1974 Press Act, bringing about an overhaul of defamation laws. The independence of the Broadcasting Authority is guaranteed by the Constitution. The ownership of or editorial control over multiple media outlets by the two main political parties continues to shape the Maltese media landscape. The assassination of investigative journalist Daphne Caruana Galizia in October 2017 was widely seen as an attack on freedom of expression and triggered concerns about media freedom and the safety of journalists in Malta. The independence of the Broadcasting Authority is enshrined in the Constitution. The Constitution establishes the eligibility and exclusionary criteria for members of the Broadcasting Authority and the manner of their appointment. As further specified in secondary legislation, the Authority is a corporate body having a distinct legal personality, legally and functionally independent of the Government and any other private or public body. Decisions of the Authority may be challenged before the Court of Appeal as well as before the Constitutional Court. The Authority is funded from the State’s Consolidated Fund, which covers employees’ salaries. Beyond that, the Authority finances its expenses from the collection of license fees and fines imposed on broadcasters. The members of the Broadcasting Authority are appointed by the President, acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition. The Media Pluralism Monitor 2020 (‘MPM 2020’) scores the independence and the effectiveness of the Broadcasting Authority at medium risk, given that all five members of the board are, in effect, political appointees. They have been selected by Malta’s two main political parties, while the chairperson is generally chosen by mutual agreement of those two parties. MPM 2020 points out that, in effect, the Authority mainly monitors and regulates public service media (i.e. Public Broadcasting Services (PBS)) while de facto allowing the two other main broadcasting outlets - owned by the Labour Party and the Nationalist Party respectively - “to balance themselves out editorially”. The revised Audiovisual Media Services Directive (AVMSD) sets out a range of specific guarantees for the independence and effectiveness of national media regulators. A bill transposing this Directive is currently being discussed in Parliament. The Institute of Maltese Journalists (IGM) was founded in 1989 as an association grouping together media practitioners. The IGM enacted a Code of Journalistic Ethics and oversaw the setting up of a Press Ethics Commission (PEC) to deal with complaints against journalists arising from this Code. The IGM was instrumental in the adoption of amendments to the Malta Press Act which today incorporates the confidentiality of sources, qualified privilege, the right to information and the right of reply. MPM 2020 points out that the Institute of Maltese Journalists, which is the only professional journalists’ organisation in the country, is generally not considered as being effective in safeguarding editorial independence, and does not seem to have a strong enough voice in ensuring the overall well-being of its members. The Broadcasting Authority gathers ownership information of media outlets, but there are no obligations to make this easily accessible to the public. This includes radio and television stations owned by the political parties, which are treated as commercial broadcasters. In cases of a change in the shareholding of the media company, the Authority must be informed, following which the Authority performs a due diligence examination. The registration of the companies and the ownership information is available through the online register held by the Malta Business Register. No specific legal obligations exist for media companies to publish their ownership structures in a manner that would make this information easily accessible to the public. Furthermore, while the Broadcasting Authority has the right to obtain any type of information it considers necessary from the license holders, the Authority does not publish this information. Consequently, although it states that by and large the public is aware of who owns media companies in the country, MPM 2020 registers medium risk in terms of media ownership transparency. Political parties are expressly permitted to own, control or be editorially responsible for nationwide television and radio services. This is enshrined in the Broadcasting Act. The two main political parties represented in Parliament effectively own, control or manage multiple Maltese media outlets and broadcasters. This leads MPM 2020 to consider political independence of the media to be at acute high risk, while also indicating that “there are no common regulatory safeguards when it comes to appointing or dismissing editors, and it follows that, since political parties own multiple media outlets, political influence in such appointments or dismissals is inevitable”. There is no legal framework regulating state advertising. This creates certain risks of abuse both by the Government as well as by individual politicians. The Government uses state advertising throughout the year, but especially during the months leading up to an election, as a form of indirect political advertising. A recent inquiry by Malta’s Commissioner for Standards in Public Life concluded that it is widespread practice for Ministers to use public resources in the generation of content for their personal social media pages. The Commissioner therefore proposed guidelines on the use of social media by Ministers and Parliamentary Secretaries to which, his report states, the government has agreed to be bound to. Based on these factors, MPM 2020 points to medium risk as regards State regulation of resources and support for the media sector. The Freedom of Information Act establishes the legal framework for access to information held by public authorities. The Act establishes that Maltese citizens, EU citizens and people who have resided in Malta for a period of at least five years are eligible to request access to such information. Any refusal to provide access must be motivated and can be appealed. However, the broad definition of the grounds for refusal, as well as the administrative costs of the procedure often hinder access to public information. Journalists have reported instances where they encountered difficulties when requesting such access, due to significant delays and absence of reply. For these reasons, MPM 2020 rates access to information at medium risk. Given the importance of this right, this is of particular concern. The Government is currently considering a possible way forward for eliminating the narrow interpretation given to public interest disclosure, in order to respond to GRECO Recommendations.

A public inquiry led by a former judge is ongoing regarding the assassination of journalist Daphne Caruana Galizia. Following significant pressure from the journalist’s family, as well as from Maltese civil society and from European and international press associations, a public inquiry was set up in September 2019. A resolution by the Parliamentary Assembly of the Council of Europe specifically called for the opening of such inquiry. This Public Inquiry is to determine whether the State has fulfilled its positive obligations to take preventive operational measures to protect individuals whose lives are at risk from criminal acts, in particular in the case of journalists and to specifically investigate all the circumstances surrounding the assassination of Ms Caruana Galizia. The public inquiry has so far brought to light a series of elements that have been qualified by press freedom organisations as “disturbing revelations of state corruption and impunity related to the case […] underscoring the weaknesses in Malta’s rule of law, and entrenched impunity for both the murder of Caruana Galizia and the high-level abuses of power she investigated”. MPM 2020, scoring the journalistic profession, standards and protection area at medium risk, points out that “given ongoing developments and revelations in connection with the Caruana Galizia case, as well as continuing investigations by independent journalists into high level corruption, it is safe to say that those in the profession feel threatened”. MPM 2020 refers to a series of hate campaigns against investigative journalists critical of the State, revealed following an investigation by an independent online platform. The European Commission has repeatedly stressed the need for those responsible for Ms Caruana Galizia’s assassination to be brought to justice, without any political interference. The impact of the assassination of Malta’s foremost investigative journalist continues to be felt in Malta. The Council of Europe Platform to promote the protection of journalism and the safety of journalists reported three alerts in 2019, which are yet to be resolved. The State replied with regard to two alerts. The first alert relates to a cyberattack on the independent, investigative online media platform The Shift News. The second and third alert concerned legal intimidation against three journalists researching a book on the assassination of Ms Caruana Galizia, and the treatment of journalists following a press conference held at the office of the Prime Minister, respectively. The Platform reported one alert in 2020 relating to a SLAPP-like measure lodged by a businessman against The Shift News. IV.Other Institutional Issues related to Checks and Balances Malta is a parliamentary republic where legislative power is vested in the House of Representatives, a unicameral Parliament elected for a five-year term. The executive authority is vested in the President, who is elected by Parliament, and in the Cabinet headed by the Prime Minister. All Government ministers, including the Prime Minister, must be members of Parliament. Constitutional cases are heard by the Constitutional Court. The Constitution establishes a number of independent authorities, including the Office of the Ombudsman. In July 2020, Parliament adopted a number of constitutional reforms. A constitutional reform of the election procedure of the President of Malta was adopted. The reform, which was adopted on 29 July 2020, provides that the President of Malta will be elected by a two-thirds majority in Parliament, instead of by simple majority, in line with the opinion of the Venice Commission of June 2020. According to the new rules, as long as no two-thirds majority in Parliament is reached, the person occupying the office of President shall remain in office. In addition, a removal of the President will require a two-thirds majority in Parliament. A procedure of election and removal of the President by a two-thirds Parliamentary majority was recommended by the Venice Commission and could contribute to strengthening the role of the President in controlling the Government. The Venice Commission is currently preparing an additional opinion on the legislative text of this reform. A constitutional reform to strengthen the role of the Ombudsman has also been approved, while a proposal to establish a human rights institution is under discussion in Parliament. The Ombudsman has the function to investigate actions taken by the Government or any other authority as provided by law, and may conduct investigations on his own initiative or on the basis of a complaint. The reform, which was adopted by Parliament on 29 July 2020, inserts into the Constitution the method of appointment and removal of the Ombudsman, as well as his right to access information. The reform also provides that if, during or after any investigation, the Ombudsman is of the opinion that there is evidence of any corrupt practice as defined in the Permanent Commission Against Corruption Act, the Ombudsman may refer his findings directly to the Attorney General. The reform aims at responding to the Venice Commission’s recommendations. It is noted that the United Nations also recommended to strengthen the independence of the Office of the Commissioner for Children, by ensuring adequate specific and separate human, technical, and financial resources as well as the immunities required for it to effectively carry out its function. A proposal to establish a human rights institution was presented to Parliament in 2019. The Bill concerning the establishment of a Human Rights and Equality Commission is being discussed before the relevant Parliamentary Committees. A constitutional reform concerning the appointments to certain independent commissions has been tabled to Parliament. The Government proposed that powers relating to the appointment of a number of independent commissions would shift from the Prime Minister to the Cabinet of Ministers, including as regards the Central Bank of Malta and the Information and Data Protection Commissioner. In its June 2020 Opinion, the Venice Commission welcomed the intention of the Government to further discuss the appointment of other independent authorities such as the Electoral Commission, the Public Service Commission, and the Broadcasting Authority in the framework of the President-led Constitutional Convention. A reflection process on the role of Parliament has also been initiated. Reforms are considered concerning the statute of the members of Parliament, even if no concrete measures have been proposed yet. The Venice Commission found that the Maltese Parliament needs to be strengthened in order to be an effective check on Government, and recommended changing the system in order to provide for full-time work and payment of members. In addition, it recommended that members should benefit from non-partisan research capacity and/or from a senior consultative body. Furthermore, extensive use of delegated legislation should be avoided. Judgments of the Constitutional Court do not have erga omnes effect. It is up to the Parliament to repeal or amend laws in case a judgment of the Constitutional Court has ruled one or more provisions thereof unconstitutional. The Venice Commission has noted that, in practice, this seems not to happen in all cases, which leads to continued application of provisions found unconstitutional. Challenges remain as regards the limited use of evidence-based instruments and effectiveness of public consultations in the law-making process. Although various channels of consulting the public exist, there is a certain discretion of whether or not to initiate large-scale public consultations and a large number of exceptions. The outcomes of public consultation procedures are not always published online in a timely and easily accessible manner. Moreover, according to the OECD, Malta lacks a systematic approach towards reviewing whether laws and regulations achieved the intended policy goals . Initiatives are being planned in relation to online consultation and an e-Participation platform, as part of the Strategic Plan for the Digital Transformation of the Public Administration 2019 – 2021. Measures to face the pandemic were adopted under the State of Public Health Emergency. The Public Health Act vests the Superintendent of Public Health with the power to make, vary or revoke orders in cases of epidemics and infectious diseases, while judicial review is possible. The State of Public Health Emergency was declared by the Superintendant on 1 April 2020 with retroactive effect from 7 March 2020, and was lifted on 30 June 2020. Civil society organisations are playing an increasing role in the public debate. The civic space is considered as narrowed in view of the conditions for journalists referred to above . At the same time, civil society organisations participate more actively in the public debate, following the assassination of investigative journalist Daphne Caruana Galizia. The main law regulating the framework for Civil Society is the Voluntary Organisations Act, which provides that civil society organisations are voluntary organisations independent and autonomous of the Government and shall have their status respected by the Government at all times. While structures for the involvement and participation of civil society could be improved, civil society organisations have become increasingly engaged in the last few years in discussions on rule of law related issues, including on the need for reforms relating to the organisation of the justice system and the fight against corruption. The Government expressed its commitment to amending various pieces of legislation to ensure that the vulnerability of Voluntary Organisations is addressed. Annex I: List of sources in alphabetical order*. * The list of contributions received in the context of the consultation for the 2020 Rule of Law report can be found at (COM website). Centre for Media Pluralism and Media Freedom, 2020 Media pluralism monitor. https://cmpf.eui.eu/media-pluralism-monitor/mpm-2020 . CIVICUS, Monitor tracking civic space, Malta. https://monitor.civicus.org/country/malta/ . Commissioner for Standards in Public Life (2020), Towards the Regulation of Lobbying in Malta. Commissioner for Standards in Public Life, Case Report No. K/002, 2019. Council of Europe: Committee of Ministers (2010), Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities. Council of Europe: Committee of Ministers (2016), Recommendation CM/Rec(2016)4 of the Committee of Ministers to member states on the protection of journalism and safety of journalists and other media actors.

Council of Europe: Parliamentary Assembly (2019), Resolution 2293 (2019) of the Parliamentary Assembly: Daphne Caruana Galizia’s assassination and the rule of law in Malta and beyond: ensuring that the whole truth emerges. Council of Europe, Platform to promote the protection of journalism and safety of journalists – Malta. https://www.coe.int/en/web/media-freedom/malta . Council of Europe: Venice Commission (2010), Report on the Independence of the Judicial System Part I: The Independence of Judges (CDL-AD(2010)004). Council of Europe: Venice Commission (2016), Rule of Law Checklist (CDL-AD(2016)017). Council of Europe: Venice Commission (2018), Malta – Opinion on constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement (CDL-AD(2018)028). Council of Europe: Venice Commission (2020) – Malta – Opinion on proposed legislative changes (CDL-AD(2020)006). Council of the European Union, Council Recommendation of 20 July 2020 on the 2020 National Reform Programme of Malta and delivering a Council opinion on the 2020 Stability Programme of Malta. Daphne Caruana Galizia Foundation, contribution for the 2020 Rule of Law Report. Directorate-General for Communication (2019), Flash Eurobarometer 482: Businesses' attitudes towards corruption in the EU. Directorate-General for Communication (2020), Special Eurobarometer 502: corruption. European Court of Human Rights, Grand Chamber judgment of 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, applications nos. 55391/13, 57728/13 and 74041/13. European Court of Human Rights, Chamber judgment of 5 May 2020, Kövesi v. Romania, application no. 3594/19. Court of Justice of the European Union, judgment of 25 July 2018, LM, C‑216/18 PPU. European Commission, 2020 EU Justice Scoreboard. European Commission (2019), Country Report Malta, SWD(2019) 1017 final. European Commission (2020), Country Report Malta, SWD(2020) 517 final. European Commission (2019), Business Eurobarometer Survey. European Network of National Human Rights Institutions (2020), Contribution from the European Network of National Human Rights Institutions for the stakeholder consultation for the 2020 Rule of Law Report. European Parliament resolution of 18 December 2019 on the rule of law in Malta following the recent revelations surrounding the murder of Daphne Caruana Galizia. European Parliament resolution of 28 March 2019 on the situation of the rule of law and the fight against corruption in the EU, specifically in Malta and Slovakia.

European Parliament resolution of 15 November 2017 on the rule of law in Malta. GRECO (2019), Fourth Evaluation Round - Second Compliance Report on Malta on corruption prevention in respect of members of parliament, judges and prosecutors. GRECO (2019), Fifth Evaluation round - Evaluation Report on Malta on preventing corruption and promoting integrity in central governments and law enforcement agencies. Maltese Government (2020), input from Malta for the 2020 Rule of Law Report. OECD (2019), Indicators of Regulatory Policy and Governance – Malta. Transparency International (2020), Country Data – Malta. https://www.transparency.org/en/countries/malta Reporters without Borders, Malta. https://rsf.org/en/taxonomy/term/150 . Repubblika, contribution for the 2020 Rule of Law Report. United Nations Committee on the Rights of the Child (2019). Virtual country visit to Malta in the context of the 2020 Rule of Law Report. Annex II: Country visit to Malta The Commission services held virtual meetings in June 2020 with: ·Association of Judges ·Association of Magistrates ·Attorney General ·Broadcasting Authority Malta ·Chamber of Advocates ·Commissioner for Standards in Public Life

·Ministry of Justice ·Permanent Commission Against Corruption (PCAC) ·Police: Economic Crime Unit ·Republikka NGO ·State Advocate * The Commission also met the following organisations in a number of horizontal meetings: ·Amnesty International ·Civil Liberties Union for Europe ·Civil Society Europe ·Conference of European Churches ·EuroCommerce ·European Center for Not-for-Profit Law ·European Centre for Press and Media Freedom ·European Civic Forum ·Free Press Unlimited ·Front Line Defenders ·ILGA-Europe ·International Commission of Jurists ·International Federation for Human Rights