Magistrates regularly neglect to report to the Attorney General to account for delays in concluding inquiries as specified in the law, Times of Malta has been told.

The law stipulates that on the lapse of 60 days, the inquiring magistrate must write a report to the AG stating the reasons for not concluding an inquiry, and then must continue to submit additional reports every month after that.

Peter Grech, the AG, has confirmed that “reports by inquiring magistrates in terms of article 550A of the Criminal Code are unfortunately not submitted regularly”.

Asked to be more specific about the proportion of magistrates who do not provide reports, Dr Grech did not wish to reply.

Yet he did confirm that the percentage of inquiries that take longer than the 60 days envisaged in the law “is likely to be high”.

Extrapolations of the statistics by this newspaper show that of the 2,163 active inquiries (as at February 12, 2018) around 2,000 have been active for more than the 60 days threshold which is supposed to trigger the first delayed-status report by the magistrate.

Twenty of those inquiries have been active for 25 years, and three inquiries for more than 30 years – in these cases, the magistrate who originally launched the inquiry might be retired or even dead by now.

READ: Everything you need to know about magisterial inquiries

Times of Malta has been unable to establish whether inquiries handled by retiring magistrates have been passed on to another magistrate.

After presenting figures in reply to a parliamentary question, Owen Bonnici, the Minister for Justice, explained that the reasons for the delays are usually down to tardiness in experts presenting their findings, or “any evidence yet to be found” or a witness who “would have to be found”.

Dr Grech told this newspaper that his office reviews every report they receive.

He elaborated: “If the obstacle to the conclusion of the inquiry is clearly indicated in the report, we attempt to remedy the situation. For example if the cause of the delay is the failure of any expert to conclude his or her report, we would write directly to the expert asking him to be expeditious.”

“In fairness,” he added, defending magistrates’ regular failure to submit reports, “it must be pointed out that magistrates generally have very busy schedules and are subject to many time limits and other pressure of work, and they may have to prioritise [by not submitting monthly reports].”

READ: Three in five magisterial inquiries closed

Times of Malta asked Stefano Filletti, a lawyer who heads the Criminal Law Department at the University of Malta, whether lawyers could latch on to the failure of magistrates to submit reports within the legal time frames in order to nullify the report by the magistrate at the conclusion of the inquiry. The report is officially called proces-verbal, and it contains the reports or findings of the court-appointed experts, the evidence gathered by the police, and the magistrate’s summary of the evidence and conclusions of the experts.

The system is currently at breaking point

“Nullity can only be invoked if it is specified in the law,” said Dr Filletti, “and the law does not provide for any sort of censure if reports are delayed or simply not submitted to the AG as laid down in law. This non-observance cannot be exploited to get any evidence or reports of experts removed from the case.”

The number of active inquiries is ever-increasing. In 2008 this newspaper reported that there were over 1,700 active magisterial inquiries; this has now swollen to 2,163.

“The law on magisterial inquiries was enacted long ago when inquiries were few and the judicial caseload much lighter,” Dr Filletti pointed out. “There has been a steep increase in inquiries, but I believe that magisterial inquiries remain essential.

“The magistrate does not investigate, that is the role of the police. The job of the magistrate is to preserve the evidence, especially in sensitive cases, which will ultimately be used in trial.

“Preservation of evidence is delicate and should ideally be handled by a magistrate. Witnesses, for example, can only take an oath in front of a magistrate, and this can be useful at a later stage in the process. Documents, reports, and data are preserved and logged according to law, and the magistrate can order any other technical report.

“The problem is that the system is currently at breaking point,” he said. Magistrates have to deal with full judicial caseloads, magisterial inquiries when necessitated, as well as arraignments and urgent applications when on duty.  These three distinct roles do not complement one other,” he said.

“Over the years there have been calls to appoint magistrates to deal solely with criminal inquiries. This would ease the pressure on magistrates and yield practical benefits.”

Among the inquiries that have taken longer than envisaged in the law are those into Egrant, the Panamian shell company which slain journalist Daphne Caruana Galizia alleged belonged to the Prime Minister’s wife Michelle Muscat, and into money-laundering allegations involving the Prime Minister’s Chief of Staff Keith Schembri. They were launched more than nine months ago.

Why inquiries are held

An inquiry or inquest relating to the in genere, as magisterial inquiries are technically known in law, is usually held by the duty magistrate upon being notified by the police (or any other person) of the occurrence of a crime punishable by at least three years imprisonment. An inquest is similarly held in the event of unexplained deaths (in other criminal jurisdictions this role is usually fulfilled by coroners) – these include deaths from domestic or traffic accidents, even suicides.

The role of the magistrate is the preservation of evidence for any eventual court case. The magistrate collates and organises evidence gathered by the police, may take depositions of witnesses, engages experts to extract additional evidence and, at the end of the process, submits all the findings and depositions, together with the magistrate’s summary of evidence and conclusions, to the Attorney General. It is the AG, in conjunction with the police, who decide whether to prosecute or not on the basis of the evidence.