In the event that the government of Malta does not agree to institute a public inquiry into the assassination of journalist Daphne Caruana Galizia, the family's lawyers have recommended the institution of proceedings in the Maltese courts to force the Prime Minister's hand.

The British civil liberties specialist solicitors, Bhatt Murphy of London, has also recommended that the case should also go to the European Court of Human Rights if that fails.

The advice comes following an exchange of correspondence with Malta's Attorney General over the family's request for a public inquiry.

The firm wrote to the Attorney General on Friday: "It is our Opinion that Malta is acting unlawfully in not instituting a Public Inquiry into the circumstances of Ms Caruana Galizia's assassination.

"If it persists in this illegality, we advise that court proceedings are issued in Malta to compel the Prime Minister's compliance with Article 2 of the European Convention on Human Rights and if necessary thereafter in the European Court of Human Rights."

Moreover, the firm threw cold water on the assertion by the Prime Minister that such an inquiry would overlap with criminal investigations: "Any degree of overlapping evidence can easily be managed by the Chair after its initiation.  This is a matter for an independent Chair to manage, nit the very State which falls to be investigated for its potential failures. 

"It would be unlawful for Malta to prevent the Chair from undertaking his/her vital role by seeking to block or throw into the long grass the initiation of a public inquiry, on the purported basis that they are protecting the integrity of any criminal proceedings.  The Chair can ensure that no prejudice is caused by the Public Inquiry to any parallel criminal proceedings."

Bhatt Murphy lists out four main concerns over developments concerning the case in November as concerns adherence to Article 2: "First, the family were not informed of any breakthroughs or developments in the investigation; learning only of these claims via media reports of the Minister's (Michael Farrugia on Italian television) and of those unnamed 'top investigators' (who are reportedly close to cracking the case once and for all ads reported in one section of the media).

"Second, of the investigation has made progress in this respect it is obviously concerning that such a development would be leaked to the media.

"Third, if the Minister is privy to sensitive information concerning the investigation this raises concerns given that there may be matters to be investigated concerning members of the same cabinet.

"Fourth, understandable questions have been raised regarding the timing of 'sudden news that the police are close to cracking the case' being made public."

 

The central question

According to the firm, "A central question remains to be answered by the Public Inquiry; whether the Maltese authorities knew or ought to have known of, or indeed posed, a real and immediate risk to Daphne caruana Galizia's life. 

"An Article 2 compliant investigation is required to explore that question. It is clearly important not to prejudge the answer, which requires a full, fearless and independent investigation.

"This is precisely why an Article 2 compliant Public Inquiry into whether Ms Caruana Galzia's life could have been saved is so urgently required.

"The stark fact that not a single politician or government official has been interviewed regarding Ms Caruana Galizia's assassination over a year later by either the police of the magistrate underlines the urgent need for the initiation of a Public Inquiry so that its Chair cam ensure that any and all relevant evidence regarding any state complicity or neglect is preserved.

"It is likely that the Inquiry will consider systemic issues regarding the identification, assessment and resolution of risks posed to Ms Caruana Galizia's life, as distinct from issues of criminal responsibility.  It is anticipated that some witnesses may  overlap between the Public Inquiry and any criminal trial; however, this can easily be addressed by the Chair when deciding how best to sequence the various phases of the inquiry."

When it comes to the prospective Inquiry itself, and how it should relate to the criminal investigation, the firm states, "The recent judgement of the Constitutional Court [in which Assistant Police Commissioner Silvio Valletta - the husband of a minister of cabinet was removed from the investigation] underlines the importance of a Public Inquiry being allowed to preserve evidence relevant to its Terms of Reference, free of police or other state interference. The police or other state agencies must not be allowed to investigate themselves.

"The purpose and Terms of Reference will be distinct from and wider than any criminal trial."