Police should only have a role in the investigative work of a criminal judicial process, and not act as prosecutor, aditus Foundation said in its feedback on Malta’s Proposed Legislative Changes further to the Venice Commission Report on Malta.
In a recently published document, aditus Foundation highlighted that the role of the police as a prosecutor in criminal proceedings was conflicting. On the one the role of the police would be to bring all evidence that results from its investigative work, this conflicts directly with the role of the prosecutor whose role is to prosecute and secure convictions of the suspect.
In its feedback report, aditus Foundation termed as bizarre the practice of police officers obtaining a law degree and are in turn allowed to practice privately. This, the human rights NGO said, may give some officers a role in investigation, prosecution and also private practice.
The conflicting roles of the police and the public prosecutor, seriously prejudices the rights of the suspect during criminal trials, aditus Foundation maintained.
“The police should only have a role in the investigative work of a criminal judicial process and not act as prosecutor.”
When it comes to police forces, regulating conflict of interest effectively is of utmost importance: it is fundamental for both maintaining a high standard of ethical conduct and for the efficiency of police work, aditus highlighted, adding that any divergence had an adverse impact on the the public’s confidence and trust.
The foundation noted that secondary employment especially within the field of criminal law, constitutes a conflict of interest as well as a conflict of commitment.
Judicial review should cover non-prosecution
The organisation also recommended that judicial review should cover instances of non-prosecution, if the alleged victim requests it. The organisation said that judicial review should replace the current “sfida” that may be filed against the police for non-prosecution under Article 541 of the Criminal Code. The “sfida” should be retained for non-investigation of a report filed with the police.
The appointment of the Attorney General
At present, the Attorney General is appointed by the President after they receive advice from the Prime Minister. The term is indefinite until the age of retirement and can be removed by a two-thirds resolution in parliament.
The organisation noted that the process was in conflict with the recommendation that the prosecutor is independent and free from political interference.
Aditus Foundation highlighted that given the AG’s role, it was crucial that the person appointed should enjoy the confidence of both the public and the judiciary.
The organisation recommended that the professional and non-political expertise was crucial in the selection process. It highlighted that the current requirements did not establish specific criteria apart from a minimum of 12 years of experience working as an advocate, prompting aditus Foundation to recommend that the criteria for the recruitment of prosecutors should be established, transparent and open to public scrutiny.
President elected by universal suffrage?
The organisation noted that for a president to be an effective actor within the checks and balances system the appointment should be either by qualified majority in parliament with a number of candidates proposed for the role or though direct universal suffrage.
The role of the President, as it currently stands is similar to that of a monarch, and should not have any executive deciding powers specifically in the appointment of the judiciary or other persons to government posts.
Aditus Foundation said that it remained concerned with the Constitutional Convention adding that it lacked the effective participation by civil society and citizens as a whole.
Read the aditus Foundation proposals here.