EUROPEAN COMMISSION Brussels, 20.7.2021 SWD(2021) 720 final COMMISSION STAFF WORKING DOCUMENT 2021 Rule of Law Report







Country Chapter on the rule of law situation in Malta Accompanying the COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS 2021 Rule of Law Report







The rule of law situation in the European Union {COM(2021) 700 final} - {SWD(2021) 701 final} - {SWD(2021) 702 final} - {SWD(2021) 703 final} - {SWD(2021) 704 final} - {SWD(2021) 705 final} - {SWD(2021) 706 final} - {SWD(2021) 707 final} - {SWD(2021) 708 final} - {SWD(2021) 709 final} - {SWD(2021) 710 final} - {SWD(2021) 711 final} - {SWD(2021) 712 final} - {SWD(2021) 713 final} - {SWD(2021) 714 final} - {SWD(2021) 715 final} - {SWD(2021) 716 final} - {SWD(2021) 717 final} - {SWD(2021) 718 final} - {SWD(2021) 719 final} - {SWD(2021) 721 final} - {SWD(2021) 722 final} - {SWD(2021) 723 final} - {SWD(2021) 724 final} - {SWD(2021) 725 final} - {SWD(2021) 726 final} - {SWD(2021) 727 final}



Abstract The reforms of 2020, in particular the reform of the system of judicial appointments and of judicial discipline, have contributed to strengthening the independence of the Maltese justice system. The perception of judicial independence has notably improved. Steps have been taken to depoliticise the appointment of the Chief Justice, while certain aspects of this procedure require further attention. The transfer of prosecutions from the police to the Attorney General is progressing. Whereas this transfer needs time, it is important that it also covers less serious offences. There are ongoing discussions to enhance the independence of specialised tribunals. Serious challenges remain as regards the efficiency of the justice system, in particular the length of court proceedings, the impact of the low number of judges and the digitalisation of justice. A new targeted anti-fraud and corruption strategy was approved by the Government. While investigative and prosecution bodies have improved their capacity to deal with corruption cases, as shown by an increase in the number of cases opened, investigations continue to be lengthy depending on their complexity and a track record of convictions in high-level cases remains to be established. The reforms concerning the appointment of the Police Commissioner and of the Commissioners of the Permanent Commission against Corruption, as well as the reorganised cooperation between the Police and the Attorney General, are recent and results are yet to be seen. Concerning the rules on integrity for public officials, including members of Parliament and ministers, further changes are envisaged. Specific guidance has been put in place to mitigate the risks of corruption in public procurement during the COVID-19 pandemic. The public inquiry into the assassination of investigative journalist Daphne Caruana Galizia continued to hear testimonies throughout 2020 and 2021, concluding its work on 15 July 2021. There have been developments in the separate criminal proceedings relating to this case. Journalists still face obstacles when requesting access to information held by public authorities as well as in the exercise of their profession more generally. Amendments to Malta’s Broadcasting Act have not introduced any changes which would enhance the Broadcasting Authority’s effective independence. In the light of the ownership by the two main political parties of their own television and radio stations, a constitutional case has been lodged challenging the relevant section of the Maltese Broadcasting Act and the media regulator’s application of that provision. In 2020, Malta established a support scheme for news media providers to counteract the adverse effects of the COVID-19 pandemic. Further reforms have been carried out to enhance checks and balances. Reforms of the appointment of persons exercising top executive functions and appointments to certain independent commissions, proposed in 2020, have been adopted. Remaining concerns regarding the appointment process for certain other public bodies will be addressed under the Constitutional Convention. However, due to the COVID-19 pandemic, the timing and organisation of this Convention are still to be set. The Ombudsperson’s role has been strengthened, although he noted a lack of consistency in the follow-up to his recommendations. The draft law on the establishment of a national human rights institution is still under discussion in Parliament. Challenges remain in relation to the limited use of public consultations in the law-making process, including on structural reforms. While civil society organisations continue to participate actively in the public debate, they raised certain concerns on access to funding and actions by the Commissioner for Voluntary Organisations. 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 over the Constitutional Court. 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 was set up in 2019. Malta participates in the European Public Prosecutor’s Office. The Bar Association (Chamber of Advocates) is an independent and self-regulated professional body of lawyers. Independence The level of perceived judicial independence has improved and is now high. The fairly or very good perception of judicial independence among the general public (69%) has improved significantly since 2020 (52%), including as compared to 2016 (44%). The fairly good or very good perception of judicial independence among companies (67%) has also improved significantly since 2020 (48%), inverting a previously decreasing trend. The new system of judicial appointments has contributed to strengthening judicial independence. The new system of judicial appointments, adopted in July 2020, was assessed by the Venice Commission in its Opinion of October 2020. The Venice Commission welcomed the reform, positively assessing the new composition of the Judicial Appointments Committee (‘JAC’), the publication of judicial vacancies, the direct proposals by the JAC of judicial candidates to the President of Malta, the submission of detailed reports on candidates by the JAC and the presentation by the JAC of the three most suitable candidates for appointments. These reforms, which take into account Council of Europe recommendations, contribute to strengthening judicial independence. The Chamber of Advocates and civil society organisations have welcomed the reforms. However, the Venice Commission regretted the procedure followed by the Maltese Government for its adoption, which did not allow for a wider consultation of civil society or a wider public debate, as also highlighted by civil society. It also pointed out that, in light of its previous recommendations, the names of the three candidates proposed by the Judicial Appointments Committee should be made public before the President of Malta decides on the appointment, so as to ensure the transparency of the process, as this was not part of the adopted reform. The new procedure for judicial appointments was applied for the recruitment of four judges and four magistrates in April and June 2021 respectively. The reform of the procedure for dismissal of magistrates and judges has also strengthened judicial independence. Changes have been introduced to the procedure for the dismissal of magistrates and judges. Under the new system, the dismissal procedure is under the remit of the Commission for the Administration of Justice, composed in majority of members of the judiciary, as opposed to the previous system where Parliament was in charge of this procedure. In its October 2020 Opinion, the Venice Commission considered the reform to be generally in line with existing standards. Steps have been taken to depoliticise the appointment of the Chief Justice. In its October 2020 Opinion, the Venice Commission reiterated the need for depoliticising the appointment of the Chief Justice as much as possible. The same opinion considered that the requirement of a two-thirds majority in Parliament for the appointment of the Chief Justice would lead to such a depoliticisation, but it regretted that no anti-deadlock mechanism has been provided in that respect. More generally, the appointment of the Chief Justice by Parliament, without the involvement of the judiciary, considered together with the possibility that a person from outside the judiciary could be appointed as Chief Justice, will require further attention. The Chamber of Advocates expressed the view that the appointment of the Chief Justice should be made from among senior judges, thus eliminating the possibility that persons from outside the judiciary could be appointed directly as Chief Justice, and that the appointment should be made by members of the judiciary themselves, without intervention of any political power. The transfer of certain types of prosecutions from the police to the Attorney General is progressing according to a timeline, but there is no timeline for the transfer of the less serious offences. Until recently, all prosecutions before the inferior courts (Courts of Magistrates) were carried out by the police, while the office of the Attorney General prosecuted cases before the Superior Courts (Criminal Court and Court of Criminal Appeal both in its inferior and superior jurisdiction). The implementation of the transfer started early in 2020 with a recruitment of 20 new lawyers to the Office of the Attorney General in order to enable the Office to handle the additional workload more efficiently. On 1 October 2020, the first phase of the transitory period ended and the Attorney General had taken over the decisions to prosecute and the initiation of prosecution concerning specified serious crimes, including corruption. The Government’s plan is to continue, until 1 October 2024, transferring annually an additional number of offences to the Attorney General. However, this plan does not include the transfer of contraventions or crimes punishable with a fine or a maximum of two years’ imprisonment or less (summary cases). Currently, no clear indication exists as to whether these cases would also be subject to the transfer. While this transfer needs appropriate time, it would be important to transfer all prosecutions, including for summary offences, to the Attorney General and to do so as soon as possible. Safeguards regarding the procedure for the appointment and removal of the Attorney General leave room for strengthening. Following an amendment to the Constitution adopted in July 2020, the removal of the Attorney-General can be carried out by the President of Malta following a resolution adopted by a two-thirds majority in Parliament. Similar changes have been introduced for the State Advocate. In its October 2020 Opinion, the Venice Commission recommended that an expert body should decide on the grounds for removal, or that an appeal to the Constitutional Court should be possible against a decision of a parliamentary committee, before the plenary of Parliament takes the final decision on the removal. As regards the procedure for appointment, while safeguards were added following a reform in 2019, 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 significant number of specialised tribunals continue to operate. Many of these tribunals are appointed through a procedure involving the executive power. The Venice Commission has raised concerns regarding the operation of these specialised tribunals, considering that they do not enjoy the same level of independence as that of the ordinary judiciary, and reiterated in October 2020 its recommendations in that respect. Stakeholders, including the Chamber of Advocates, have also expressed concerns. There are ongoing discussions in the context of the Recovery and Resilience Facility about the review of the independence of these specialised tribunals. Quality Important gaps exist in the digitalisation of the justice system, which the implementation of a forthcoming digital strategy could contribute to address. In 2020, a public consultation was announced on a digital strategy and an action plan, to be overseen by the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe and funded by the Structural Reform Support Programme. Following the consultation process, a draft digital strategy and action plan will be presented around mid-2021 to the Ministry for Justice. The implementation of the strategy is needed to address the current important gaps in the digitalisation of the justice system, as highlighted by stakeholders in particular as regards the limited possibility to file and follow a procedure by electronic means. Areas that could be further strengthened include the use of digital technology by courts and prosecution services, the use of electronic communication tools by courts and by the prosecution service, and digital solutions to conduct and follow court proceedings in criminal cases. A law adopted in February 2021 allows the Minister for Justice to enact regulations that would allow for electronic filing of criminal judicial acts, to submit electronically notifications, and to conduct criminal court proceedings online. In order to face the COVID-19 pandemic, amendments to the Code of Organization and Civil Procedure were adopted in November 2020 to allow civil proceedings to be held online. Amendments have been proposed that would empower administrative authorities to impose sanctions for violations currently decided by courts. In February 2021, legislative amendments were proposed that would regulate types of violations that could be considered to be of criminal nature in situations where a public authority imposes a civil penalty, an administrative fine, or other civil or administrative sanctions or measures. The draft amendments would empower administrative authorities to impose certain sanctions for violations of criminal nature that currently can only be decided by judicial authorities. Stakeholders have raised concerns in that respect, considering that these amendments might lead to violations of the right to fair trial, as they would lead to an increase in cases dealt with by administrative authorities instead of by courts, and because the amendments proposed could only be introduced through a constitutional amendment and not through statutory legislation as proposed by the Government. In its Urgent Opinion of 1 June 2021, the Venice Commission considered that the proposed reform should be achieved through an amendment of the constitution, whilst ensuring further clarification as regards its relations with Article 6 European Charter of Human Rights. Efficiency

The length of proceedings remains a serious concern. The duration of litigious civil and commercial cases at first instance, in 2019, remained very long (465 days), showing an increasing trend since 2017. The duration of these proceedings in appeal was also very long (875 days) in 2019. The average length of money laundering cases remained particularly long in 2019 (over 1350 days), even if with a decreasing trend. While the time needed to resolve administrative cases at first instance remained lengthy, it has shown a decreasing trend since 2017. The clearance rate for civil, commercial, administrative and other cases in 2019 was below 100% and continued to decrease. Serious concerns about the efficiency of the Maltese justice system were raised by stakeholders. These concerns are exacerbated by the COVID-19 pandemic that led to the suspension of the work of courts for a period in 2020 and continues to hamper the activity of courts. In relation to criminal proceedings, in November 2020, the Minister for Justice announced amendments to speed up magisterial inquiries and criminal proceedings as well as to reduce the backlog in the Court of Appeal. Moreover, a new law in the field of civil procedure has been enacted that would provide for a shortening of the compilation of evidence. The law also appears to aim at reducing the backlog of cases before the Court of Appeal by providing the possibility for the appellate court to grant a hearing only when necessary. A relatively low number of judges and magistrates might affect the efficiency of the justice system. The number of judges per capita is among the lowest in the EU. While four judges were appointed in April 2021 to fill in existing vacancies, and four magistrates were appointed in June 2021, this would amount to an increase by one of the overall number of judges and magistrates, as most vacancies were opened to replace the retired or promoted judges and magistrates. The Association of Judges and Magistrates has called on the Government to appoint at least six new magistrates in order to ensure the efficiency of the Maltese justice system. II.Anti-Corruption Framework The institutional anti-corruption framework comprises several authorities. The Permanent Commission against Corruption is responsible for corruption prevention and for carrying out administrative investigations into corrupt practices. The Commissioner for Standards in Public Life monitors the ethics of ministers, parliamentary secretaries and members of Parliament. Investigation and prosecution of economic crime, including corruption offences and money laundering, are under the competence of the Police (the Financial Crimes Investigation Department) and the Attorney General respectively. The latter will, during a transition period between 2021 and 2024, take over the prosecution of all offences carrying a conviction of more than two years imprisonment. 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. As stated in the 2020 Rule of Law Report, 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 carrying out wider rule of law reform. The perception among experts and business executives is that the level of corruption in the public sector remains relatively high. In the 2020 Corruption Perceptions Index by Transparency International, Malta scores 53/100 and ranks 15th in the European Union and 52th globally. This perception has significantly decreased over the past five years. A targeted National Anti-Fraud and Corruption Strategy for the period 2021-2024 was approved by the Government in March 2021. The Cabinet of Ministers approved the strategy, which was notified publicly to the Parliament in May 2021. Its pillars are training and education, sharing of information, institutional cooperation (domestically and internationally), as well as accountability on public financing. The implementation of the strategy is coordinated by a committee chaired by the Internal Audit and Investigations Department (IAID). Representatives of the Ombudsman office, the private sector, civil society and non-governmental organisations regretted not having been invited or consulted prior to the adoption of the strategy. While investigative and prosecution bodies have improved their capacity to deal with corruption cases, as shown by an increase in the number of cases opened, investigations continue to be lengthy depending on their complexity and a track record of convictions in high-level cases remains to be established. Since October 2020, the Attorney General has taken over the prosecution of certain serious crimes, including high-level corruption. A total of 14 prosecutors are dedicated to financial crimes and, since the second quarter of 2020, a task force on complex financial crimes has been in place. The number of financial crimes cases investigated and solved has increased substantially, following the recent increase of resources and capacity of the financial crimes investigations department (FCID) that took place between 2019 and September 2020. However, the investigation and prosecution of corruption remains a lengthy process, especially in those cases that require large financial data analysis or that are considered complex. There are currently several high-level corruption cases that remain pending before the court. New measures were introduced to improve integrity in the Police. In September 2020, under the lead of the newly appointed Police Commissioner, the Police launched a Transformation Strategy for the years 2020-2025, aimed at strengthening anti-corruption measures. The Police has implemented a policy regulating Business Interests and Additional Occupations, whose monitoring is the mandate of the Evaluation Board, appointed by the Police Commissioner. In 2020, the Police Act was amended in order to allow police officers to make anonymous reports on breach of integrity within the police. However, the effectiveness of this measure will depend on its actual implementation. Although the independence of the Permanent Commission against Corruption has been strengthened, clear results of recent reforms are still missing. The Permanent Commission against Corruption (PCAC) is responsible for the prevention of corruption in the public administration and can conduct administrative investigations. As reported in 2020, the PCAC underwent a structural reform aimed at improving the appointment procedure of its three commissioners and extending the scope of its investigative competences. While the PCAC may request the assistance of the Police in the conduct of investigations, the PCAC has no in-house investigators nor data analysts; its resources remain limited, and concerns regarding its capacity to conduct impactful inquiries therefore persist. Police investigations and PCAC assessments can moreover be very lengthy. In 2020, the PCAC examined four cases of corruption, and two cases at the beginning of 2021. However, there is no detailed information on the workload of the PCAC. To date, very few whistleblowers have addressed their complaints to the PCAC. Once the examination of a file is concluded, the PCAC can close the case, or forward it to the Attorney General. In case the Attorney General decides not to prosecute, the PCAC may challenge that decision. Since August 2020, the PCAC has forwarded two cases to the Attorney General’s office. New provisions allow the Auditor General to notify its findings to the prosecution. The Internal Audit and Investigations Department (IAID) is responsible for auditing all governmental departments, including verification on financial books of public institutions and on conflicts of interest of public officials. The office of the Auditor General has competence to audit the accounts of public departments, including state-owned enterprises. On 15 March 2021, amendments to the Auditor General and National Audit Office Act were adopted which provide that, under specific circumstances, the Auditor General may refer their findings directly to the Attorney General. The mandate of the Ombudsperson, who is responsible for the integrity of civil servants, has expired. The Ombudsman office is entitled to conduct investigations on officers and institutions performing administrative functions, including for cases of corruption, which are forwarded to the Attorney General. The Ombudsman office has the right to appeal against a decision of the Attorney General not to prosecute a case of corruption. To date, this right has not been exercised . The mandate of the current Ombudsperson expired in March 2021, therefore the current Chair continues to serve until a successor is nominated . The ethics rules for high-ranking officials, members of Parliament and ministers are in place, including on asset disclosure and lobbying, although further changes are envisaged in the integrity framework. The Commissioner for Standards in Public Life (“the Commissioner”) monitors the ethical conduct of ministers, parliamentary secretaries and members of Parliament. The regulation on lobbying and the codes of ethics for ministers and members of Parliament are currently under review. In 2020, the Commissioner presented a report on the Code of Ethics, which remains to be considered by Parliament. Every year, members of Parliament and ministers submit their declaration of assets to the office of the Speaker of the Assembly, while the Commissioner performs the verifications. The Commissioner is currently following up on eight cases of potential conflicts of interest for members of Parliament. Rules of ethics applicable to persons of trust have been amended but concerns were raised on the feasibility and the effectiveness of controls. Persons of trust are required to submit the basic asset disclosure. Recommendations for amendments of the draft law on the appointment of persons of trust were issued by both the Venice Commission and the Group of States against Corruption (GRECO) . Since March 2021, following the adoption of a clear legal basis for their appointment, a public official seconded to another administration remains bound to the regulations applicable to the public administration of origin. However, the Commissioner for Standards in Public Life has voiced concerns on the feasibility and effectiveness of the control on the ethics of persons of trust, especially for those that work more closely with or under a minister. The individual investor programme, allowing for the granting of citizenship in exchange for pre-determined payments and investments, has been replaced by a new scheme. Documents published by different media sources under the project name “passport papers” raised doubts about the compliance of applicants for the individual investor programme with the programme’s requirements. The European Commission launched an infringement procedure against Malta in relation to the previous and the new investor citizenship scheme as regards compliance with EU law. Specific guidance has been put in place to mitigate the risks of corruption in public procurement during the COVID-19 pandemic. In 2020, the Department for Contracts within the Ministry for Finance and Employment implemented the Procurement of Property Regulations, published on 30 April 2020, including provisions against corruption and collusion. The Department for Contracts has also implemented an online post-contract module, within the official public procurement portal, aimed at preventing conflicts of interest in tendering procedures. III.Media Pluralism and Media Freedom 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 overall positive overhaul of defamation laws. The Constitution sets out the composition, appointment and removal procedures and independence of the Broadcasting Authority and lays down its basic functions. The Freedom of Information Act establishes the legal framework for access to information held by public authorities. Legislation was enacted in 2020 to transpose the Audiovisual Media Service Directive into Maltese law. Amendments to Malta’s Broadcasting Act have not brought about any changes which would strengthen the independence and functioning of the Broadcasting Authority. The members of the Broadcasting Authority are appointed by the President, following the advice of the Prime Minister and after consultation with the Leader of the Opposition. Although the authority’s five board members are all political appointees, given that it has clearly defined responsibilities at law and is generally transparent about its activities, the Media Pluralism Monitor 2021 considers the independence and the effectiveness of the authority to present low risk. Act No. LVI of 2020, which amended the Broadcasting Act to align it with the Audiovisual Media Service Directive, has introduced no changes relating to the independence of the Broadcasting Authority. Concerns with regard to political party ownership of and influence on the work of several media outlets and broadcasters persist. The two main political parties represented in Parliament effectively own, control or manage a number of Maltese media outlets and broadcasters, including online news portals. MPM 2021 considers that this state of affairs means that these two parties “actively contribute towards shaping the working environment for journalists” while their media outlets are “a major influence on public discourse”. This leads MPM 2021 to once more consider political independence of the media to be at acute high risk in the country. As pointed out in MPM 2020 and reiterated in MPM 2021 the Broadcasting 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”. In the light of this state of affairs, a constitutional case has been lodged to challenge a proviso of Section 13(2) of the Broadcasting Act and the regulator’s application of this proviso which, it is argued, consolidates a polarised media landscape. Minor changes were made to the statute of the Institute of Maltese Journalists (IGM). The IGM, the professional journalists’ organisation in the country, which was founded in 1989, unanimously approved a number of amendments to its statute (including an increase of its board members and additional scrutiny of its finances) proposed by the Commissioner for Voluntary Organisations. While MPM 2020 had pointed out that the institute is generally not considered as being effective in safeguarding editorial independence, MPM 2021 notes a change in approach over the past year during which the institute has “become more vocal about the needs of its members, as well as proactive in addressing any obstacles faced by journalists in the carrying out of their duties.”.

There have been no developments with regard to media ownership transparency and no legislative changes are planned. The Broadcasting Authority gathers ownership information of media outlets, but there are no obligations to make this easily accessible to the public. Given the relatively small size of the media market, the public is largely aware of who owns media companies in the country. Consequently, MPM 2021 maintains its medium risk score in terms of media ownership transparency. The Broadcasting Act contains specific limitations to prevent a high degree of horizontal ownership concentration in the audiovisual media sector. However lack of complete data makes it difficult to make a full assessment. The lack of a legal framework regulating state advertising continues to provide room for abuse both by the Government and by individual politicians. This emerges from investigations conducted by Malta’s Commissioner for Standards in Public Life relating to the allocation of public funds for alleged political advertising in print media by a sitting government minister. Draft guidelines on government advertising and promotional material were issued for the first time by the Commissioner for Standards in Public life in June 2021 and are pending consultation . In April 2020, Malta Enterprise launched a support scheme for news media providers to cushion the adverse effects of the COVID-19 pandemic. The scheme, which by February 2021 had distributed a little over EUR 1.2 million in funds, was designed to assist media operators which employ at least four full-time journalists and which provide daily news services. Several major independent media houses have defended the scheme. Other stakeholders, including certain other independent media houses and outlets, have commented that the scheme lacked transparency in terms of the criteria used to determine the amounts allocated and that it was designed in a manner that would benefit media houses owned by the political parties. MPM 2021 reports that several freedom of information requests made on the matter remained unanswered. For the above-mentioned reasons MPM 2021 maintains its medium risk score in terms of state regulation of resources and support for the media sector. The Government has started a review of the legal framework enabling access to information held by public authorities. The Freedom of Information 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 information held by public authorities. Any refusal to provide access must be motivated and can be appealed. Journalists, NGOs and MPM 2021 report that journalists consistently encounter difficulties when requesting such access, due to outright rejection, significant delays and absence of reply. The IGM has furthermore pointed out that public authorities habitually initially deny full access to information and data while also raising concerns with regard to the handling of certain COVID-19 related press conferences during which journalists questions were not broadcast. For these reasons MPM 2021 has significantly increased the risk score for this area albeit maintaining it within the medium risk band. The Government has announced that in the light of GRECO Recommendations on the matter, an independent study was launched in January 2021 to examine the issue. The public inquiry established to determine whether the state bears any responsibility for the circumstances that led to the assassination of journalist Daphne Caruana Galizia continued hearing testimonies . In the course of 2020 and 2021, the public inquiry pointed to what some stakeholders qualified as worrying instances of political interference, police cover-up and collusion with criminals. A submission to the public inquiry authored by the international free speech organisation Article 19 and supported by several international press associations concludes that if the mandate of the inquiry is completed and its recommendations implemented “it has the potential to form an important precedent for achieving justice for journalists globally” adding that the work of the inquiry “is essential for ensuring reparations for the victim, her family and Maltese society”. Journalists continue to face a number of challenges in the exercise of their profession. This has been confirmed by journalists, the IGM, MPM as well as NGOs though MPM 2021 registers a slight reduction of risk compared to MPM 2020. The Council of Europe Platform to promote the protection of journalism and the safety of journalists reported two new alerts in 2020, which are yet to be resolved, relating to the opening of SLAPP lawsuits by a British-Azerbaijani businessman against five Maltese media outlets and to the alleged bribery of a Times of Malta journalist. Both alerts are related, respectively, to investigative journalism conducted by Daphne Caruana Galizia and to the criminal proceedings related to her assassination. The IGM has raised concerns with regard to what it terms ‘the normalisation of ridicule and derision’ of journalists on social media. 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 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 Ombudsperson. Checks and balances in the procedure of appointment and removal of the President of Malta were strengthened. The reform adopted in July 2020 provides that the President of Malta is elected by a two-thirds majority in Parliament, instead of a simple majority. This is in line with the opinions of the Venice Commission, which nonetheless also called for providing for an anti-deadlock mechanism, currently absent. In addition, the removal of the President now requires a two-thirds majority in Parliament and can only be decided on the grounds of a proved inability to perform functions of the office or “proved misbehaviour”. While welcoming the reform, the Venice Commission recommended that the President should have a right of appeal to the Constitutional Court against a finding of such misbehaviour, ideally before the final vote in Parliament. The strengthened role of the Ombudsperson could be further enhanced and the draft law establishing a national human rights institution is still under discussion in Parliament. A reform adopted in June 2020 brought the rules on appointment, suspension and dismissal of the Ombudsperson at the constitutional level. In its October 2020 Opinion, the Venice Commission welcomed the reform, while making a number of additional recommendations, in particular recommending that the Ombudsperson enjoy a right to judicial review of the decision on his dismissal due to “proved misbehaviour”. The incumbent Ombudsperson regretted the lack of consultation on the reform, whilst making proposals to further strengthen this Office. Furthermore, the Ombudsperson raised concerns as regards a lack of follow-up to his recommendations and proposed that Parliament should be bound to discuss the opinions submitted. The mandate of the current Ombudsperson expired on 21 March 2021, but no successor has been nominated by the date of publishing this report. The proposal to establish a national human rights institution, proposed in 2019, is still being discussed in Parliament. A constitutional reform concerning the appointments to certain independent commissions has been adopted The reform adopted on 24 March 2021 provided that powers relating to the appointment of a number of independent commissions will now be vested in the Cabinet of Ministers, instead of the Prime Minister. The Venice Commission welcomed the reform as a positive step, making recommendations as regards the exact formulation to be used in this regard. The Venice Commission also reiterated its recommendation to strengthen the appointment procedures of the Electoral Commission, the Public Service Commission and the Broadcasting Authority. The Government plans to discuss this matter in the context of the Constitutional Convention. Due to the current COVID-19 pandemic, the timing of the Convention has not yet been decided. Civil society organisations have underlined the need for information about the timing, process and participation to the Convention. Reforms proposed in 2020 as regards the appointment of persons exercising top executive functions in the public administration were adopted. On 24 March 2021, an amendment was adopted establishing a clear basis for the appointment of persons of trust. Another amendment, adopted on 24 May 2021, ensures 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. These amendments aim at following up on recommendations of the Venice Commission and GRECO. There is a need to ensure consistent follow-up of judgments of the Constitutional Court where laws are found to be unconstitutional. According to the Maltese constitutional order, judgments of the Constitutional Court do not have erga omnes effect. Laws found unconstitutional remain in force until Parliament repeals them. The Venice Commission found that in practice Parliament does not seem to consistently ensure such follow up and recommended in that respect to introduce an obligation for Parliament to repeal or amend within a limited time-frame provisions found unconstitutional. There are currently no initiatives planned to address this issue. A reflection on the role of Parliament could be addressed in the context of the Constitutional Convention. The Venice Commission reiterated the recommendations in respect of Parliament, notably to provide sufficient research capacity for individual Members of Parliament (MPs), independent legal advice for such Members and ensuring that backbench Members of Parliament are made less dependent from government posts. In that respect, the Government announced its intention to discuss, in the context of the constitutional reform, whether MPs should be given the choice between working full-time or part-time. Discussions regarding the allocation of additional funds for the engagement of research officers by each parliamentary group are ongoing. Challenges remain in the law-making process as regards the limited use of evidence-based instruments and effectiveness of public consultations. Previous concerns about the limited use of public consultations remain valid with regard to the reforms adopted in June 2020. Civil society organisations have also raised concerns about the lack of consultations regarding laws which affect their functioning. The e-Participation platform that is being developed by the government, is set to be used to conduct public consultations. Measures to face the COVID-19 pandemic continued to be adopted. The Public Health Act vests the Superintendent of Public Health with the power to declare the state of public health emergency, without the need to set the time-frame of its duration. The same Act provides the Superintendent with the power to make, amend or revoke orders in cases of epidemics and infectious diseases. These powers were used more than 55 times from June to December 2020 and twice (January and February) 2021. Regulations and orders issued under the state of public health emergency can be subject to scrutiny by Parliament. Civil society organisations have expressed concerns regarding access to funding and the role of the Commissioner for Voluntary Organisations. The civic space continues to be considered as narrowed in view of, among others, the conditions for journalists. Civil society organisations participate actively in the public debate. However, they have expressed concerns about new rules on fundraising activities adopted in September 2020 as these are seen as creating a double hurdle for associations to conduct their activities and grant undue discretion to the Commissioner for Voluntary Organisations to refuse approval to anyone to act as collectors. Civil society organisations have raised concerns that actions of the Commissioner could be politically motivated. Various schemes were open in 2020, including an emergency fund set up in 2020 to help Voluntary Organisations to overcome challenges entailed by the COVID-19 pandemic which was extended until March 2021 and provided with an additional EUR 150 000. More than 120 non-profit groups benefited from the first stage of the scheme launched in May 2020 with a EUR 125 000 funding. On 1 July 2021, the Commissioner for Voluntary Organisations resigned. Annex I: List of sources in alphabetical order* * The list of contributions received in the context of the consultation for the 2021 Rule of Law report can be found at https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism/2021-rule-law-report-targeted-stakeholder-consultation .

Article 19 (2021), Public Inquiry into the assassination of Daphne Caruana Galizia. Written submission, 31 March 2021( Submission to Public Inquiry (mfrr.eu) ). Association of Judges and Magistrates of Malta (2021) Press Release 11 February 2021(article on the press release: Government urged to issue a call for more magistrates (timesofmalta.com) ). BBC (2021), Malta golden passports: 'Loopholes' found in citizenship scheme of 22 April 2021, ( https://www.bbc.com/news/world-europe-56843409 ). Centre for Media Pluralism and Media Freedom (2021), Media pluralism monitor 2021 ( https://cmpf.eui.eu/media-pluralism-monitor/mpm-2021/ ). Chamber of Advocates (2020), press release of 14 May 2020, ( https://www.avukati.org/2020/05/14/press-release-chamber-of-advocates-may-14-2020/ ). Chamber of Advocates (2021) A Position Paper of the Chamber of Advocates —Bill 198- the Supremacy of the Constitution and due process—, 10 March 2021 ( https://www.avukati.org/2021/03/10/bill-198-the-supremacy-of-the-constitution-and-due-process/ ). Chamber of Advocates (2021), MFSA Consultation on new CSP Rulebook. Chamber of Advocates Feedback and Position Paper ( https://www.avukati.org/wp-content/uploads/2021/01/Chambers-response-MFSA-consultation-CSP-Rulebook.pdf ). Civicus, Monitor tracking civic space – Malta ( https://monitor.civicus.org/country/malta/ ). Commissioner for Standards in Public Life (2021), Case K/028, Allocation of public funds for alleged political advertising in print media, case report ( https://standardscommissioner.com/wp-content/uploads/Commissioner-for-Standards-case-report-K028.pdf ). 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), Recommendations and Declarations of the Committee of Ministers of the Council of Europe in the field of media and information society, ( https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680645b44 ). Council of Europe: Consultative Council of European Judges (2016), Opinion No. 19 on the role of Court Presidents ( https://www.coe.int/en/web/ccje/avis-n-19-sur-le-role-des-presidents-de-tribunaux ). Council of Europe: Platform to promote the protection of journalism and safety of journalists, ( https://www.coe.int/en/web/media-freedom ). Council of Europe: Venice Commission (2020), CDL-AD(2020)019-e Opinion of 8 October 2020 on Malta - Opinion on ten Acts and bills implementing legislative proposals subject of Opinion CDL-AD(2020)006 ( https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)019-e ). Directorate-General for Communication (2020), Flash Eurobarometer 482: Businesses' attitudes towards corruption in the EU. Directorate-General for Communication (2020), Special Eurobarometer 502: corruption. European Commission (2020), Rule of Law Report, country chapter on the rule of law situation in Malta. European Commission (2021), EU Justice Scoreboard. GRECO (2019), Fifth Evaluation Round – Evaluation Report on Malta on preventing corruption and promoting integrity in central governments (top executive functions) and law enforcement agencies. Judgment of the Court of Justice of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, ECLI:EU:C:2021:311.

Maltese Government (2021), National Anti-Fraud and Corruption Strategy ( https://parlament.mt/media/112436/national-anti-fraud-and-corruption-strategy_en.pdf ). Parliament of Malta (2021), Paper Laid No.: 6624, National Anti-Fraud and Corruption Strategy published by the Office of the Prime Minister, dated May 2021 ( https://parlament.mt/en/paper-laid/?id=34616 ). Parliamentary Ombudsman Malta (2020), Annual Report 2019 ( https://www.ombudsman.org.mt/category/annual-reports/ ). Reporters without Borders – Malta ( https://rsf.org/en/taxonomy/term/150 ). Repubblika (2020), Press Release n. 117/2020 ( Stqarrija PR 117/2020 - Repubblika ). Repubblika (2021), Press Release n. 34/2021, Reply to the Commissioner for Voluntary Organisations, 16 March 2021 ( https://repubblika.org/press-release/reply-commissioner-voluntary-organisations-remarks-press/ ). Repubblika (2021), Press Release n. 52/2021, We congratulate four people who will be appointed to serve as judges in the Superior Courts of Malta. We wish them wisdom and courage to do work without looking anyone in the face, 15 April 2021 ( https://repubblika.org/press-release/we-congratulate-four-people-who-will-be-appointed-to-serve-as-judges-in-the-superior-courts-of-malta-we-wish-them-wisdom-and-courage-to-do-work-without-looking-anyone-in-the-face/ ). Times of Malta (2021), ‘Exposed: the great residency sham to obtain a Maltese passport’, 22 April 2021 ( https://timesofmalta.com/articles/view/exposed-the-great-residency-sham-to-obtain-a-maltese-passport.866220 ). Transparency International (2021), Corruption Perceptions Index 2020. Annex II: Country visit to Malta The Commission services held virtual meetings in April 2021 with: ·Association of Judges and Magistrates of Malta ·Auditor General ·Aditus Foundation ·Broadcasting Authority ·Chamber of Advocates ·Chief Justice and members of the Commission for the Administration of Justice ·Commissioner for Standards in Public Life ·Daphne Caruana Galizia Foundation

·Industrial Tribunal ·Information and Data Protection Commissioner ·Internal Audit and Investigations Department ·Institute of Maltese Journalists ·Lovin Malta ·Ministry for Justice, Equality and Governance ·Office of the Attorney General ·Office of Parliamentary Ombudsman – Malta ·Permanent Commission against Corruption ·Police: Financial Crimes Investigations Department ·Public Service Commission ·Prof. Justin Borg-Barthet ·Repubblika ·Secretariat of the Parliament ·State Advocate * The Commission also met the following organisations in a number of horizontal meetings: ·Amnesty International ·Center for Reproductive Rights ·CIVICUS

·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 ·European Federation of Journalists ·European Partnership for Democracy ·European Youth Forum ·Front Line Defenders ·Human Rights House Foundation ·Human Rights Watch ·ILGA-Europe ·International Commission of Jurists ·International Federation for Human Rights ·International Planned Parenthood Federation European Network (IPPF EN) ·International Press Institute ·Netherlands Helsinki Committee ·Open Society European Policy Institute