Editorial: Cooperation with the European Public Prosecutor’s Office

The justice ministry did not respond to requests by Times of Malta for comment about complaints that the European Public Prosecutor's Office (EPPO) is getting shut out of magisterial inquiries. No wonder. Malta only joined the EPPO reluctantly when pressure mounted, both at home and beyond, to fight corruption effectively following the assassination of Daphne Caruana Galizia.

The EPPO was established in 2017 - although it started exercising its competence on June 1, 2021 - to investigate, prosecute and bring to judgment crimes against the EU's financial interests, such as fraud, corruption or serious cross-border VAT fraud. But Malta decided not to join for "sound technical reasons" related to the principle of subsidiarity. However, just five months later, the justice minister had announced a change of heart and Malta's participation in the EPPO was formally approved in August 2018.

Former police inspector Yvonne Farrugia, a qualified lawyer, was appointed as Malta's European prosecutor in July 2020. Still, Malta evidently remained a reluctant participant. That had been confirmed by European Chief Prosecutor Laura Codruta Kovesi when she visited Malta in the first half of last year.

She admitted it had been very difficult for her to identify the institution responsible to detect the crimes "because all of them said: 'It's not me, it's them.' And when I visited them, they said: 'It's not us, it's them'." It seems the situation was subsequently addressed and a new cooperation agreement drawn up. However, the problems persist.

In fact, in the Maltese European prosecutor's view, gaps in the way EU rules are implemented in Malta, shutting the EPPO out of magisterial inquiries, together with lack of police resources are slowing down the pace of investigations by the European anti-graft agency. The European prosecutor's officer is even finding it difficult to look into cases that fall within its remit. The confidentiality proviso covering anything forming part of magisterial inquiries could be a contributing factor.

Indeed, in cases involving fatalities or serious injury, for example, magistrates fear they could be accused of breaching the law even if, say, they keep the next of kin informed of proceedings. Farrugia is now pushing to ensure the law is changed so there could be cooperation between inquiring magistrates and the European prosecutor's office. A draft law to give more powers to the EPPO in relation to Malta investigations had been presented in parliament last December.

However, the justice minister withdrew it the following month. Why? Will it now be a case of deja vu, as happened in the beginning, when the European office had first been set up?

Such an attitude can only further raise suspicion of an unwillingness to seriously attack the culture of impunity and determination to protect certain individuals. It bears recalling that Times of Malta has reported that an investigation by the European prosecutor's office into the EUR40 million Marsa junction project faced obstacles because both the police and an inquiring magistrate refused to hand over data from Yorgen Fenech's phone. Malta, it should also be noted, has gone from zero EPPO investigations in 2021 to posting Europe's highest rate of per-capita probes.

Most of the EPPO's investigative work is done at member state level by the delegated European prosecutor. But they need the support of the national police and other law enforcement agencies supporting criminal investigations. The less the Maltese authorities are willing to cooperate with the EPPO, the more justified the opinion of so many about anaemic institutions and wilful dysfunctions in the rule of law.

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