Scottish Law Officers: roles and functions research report

Chapter 7 The Council of Europe and the Venice Commission

7.1 This Chapter refers to Council of Europe norms and principles concerning prosecutors. These norms and principles may be taken into account in any consideration of the role of Law Officers as regards the prosecution system.

7.2 The Chapter looks at Malta as an example of a jurisdiction which experienced particular difficulties including issues relating to the principal roles of the Attorney General. An Opinion of the Venice Commission for Democracy Through Law in 2018 on the roles of the Attorney General in Malta is described.

International best practice: European norms and principles

7.3 Guidance and reports are issued by international bodies about standards and principles in relation to the rule of law and the legal system, including prosecution. Two such documents are highlighted below, a Report of the Venice Commission of the Council of Europe in 2010 and an Opinion of the Consultative Committee of European Prosecutors in 2014. These documents reflect European norms and principles, which were taken into account in the Opinion of the Venice Commission on the roles of the Attorney General in Malta.

7.4 The Council of Europe is Europe’s leading human rights organisation, founded in 1949, centred on the European Convention on Human Rights. It has 46 member states. The Council’s main decision-making body is the Committee of Ministers, comprising the Ministers of foreign affairs of each member state or their permanent diplomatic representatives. A key objective of the Council of Europe is to help states to meet common European standards through expert monitoring and advisory bodies, such as the European Commission for Democracy Through Law, known as the Venice Commission.

7.5 The Venice Commission for Democracy Through Law` is the advisory Commission of the Council of Europe on constitutional matters. The role of the Commission is to provide legal advice to member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law.

7.6 The Commission also helps to ensure the dissemination and consolidation of a common constitutional heritage, playing a unique role in conflict management, and provides “emergency constitutional aid” to states in transition.

7.7 The Venice Commission's opinions relate to a specific country and any recommendations in an opinion relate to the constitutional context of that country.

7.8 The Venice Commission adopted a Report in December 2010 on European standards as regards the independence of the judicial system. Part II of the Report concerns standards as regards the prosecution service.^[65]

7.9 Thereafter the Consultative Council of European Prosecutors issued an Opinion No. 9 (2014) to the Committee of Ministers of the Council of Europe, being a reference document on European norms and principles concerning prosecutors.^[66] The Opinion contains a Charter, known as the Rome Charter, and a detailed Explanatory Note of the principles in the Charter. In preparing the reference document, the Consultative Council of European Prosecutors took into account preceding international documents, including the Venice Commission Report in 2010.

7.10 The Rome Charter makes provision on a range of matters relating to prosecutors.

7.11 The Rome Charter notes the contribution of public prosecutors to ensuring that the rule of law is guaranteed (Article I).

7.12 Article IV states that the independence and autonomy of the prosecution services constitute an indispensable corollary to the independence of the judiciary; and that therefore, the general tendency to enhance the independence and effective autonomy of the prosecution services should be encouraged.

7.13 Article V states that prosecutors should be autonomous in their decision-making and should perform their duties free from external pressure or interference having regard to the principles of separation of powers and accountability.

7.14 Transparency in the work of prosecutors is essential in a modern democracy (Article VII).

7.15 The Explanatory Note to the Charter states that the legal systems of Member States are characterised by great diversity, particularly as regards the tasks and roles of prosecutors (paragraph 3). It notes that the legal systems of some member States provide for the principle of “legality” as the basis for prosecutions, and the legal systems of other member States provide for the principle of “discretion” or “opportunity principle” (paragraph 12).

Opinion of the Venice Commission on the role of the Attorney General in Malta

7.16 The Venice Commission of the Council of Europe issued an Opinion in 2018 on an issue in relation to the role of the Attorney General in Malta.

7.17 By letter of 10 October 2018, the Chairperson of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe (PACE) requested an opinion of the Venice Commission on Malta’s constitutional arrangements and separation of powers and the independence of the judiciary and law enforcement bodies. On 13 October 2018, the Minister for Justice, Culture and Local Government for Malta requested an opinion on Malta’s legal and institutional structures of law enforcement, investigation and prosecution in the light of the need to secure proper checks and balances, and the independence and neutrality of those institutions and their staff whilst also securing their effectiveness and democratic accountability.

7.18 The request from the PACE originated in a proposal to engage the Venice Commission by the Rapporteur for the Assembly’s report on “Daphne Caruana Galizia’s assassination and the rule of law, in Malta and beyond: ensuring that the whole truth emerges”. Investigative journalist Daphne Caruana Galizia was assassinated on 16 October 2017. As a result of investigations with the assistance of Europol, the FBI and the Netherlands forensic Institute, three persons were charged in court with the commission of the crime. The alleged ineffectiveness of the investigation to find any persons who ordered this assassination and the alleged culture of impunity have been criticised from various quarters.

7.19 The Venice Commission issued an Opinion relating to Malta and the separation of powers: Constitutional Arrangements and Separation of Powers and the Independence of the Judiciary and Law Enforcement; Opinion 940/2018. The Opinion was adopted by the Venice Commission at a Plenary Session on 14-15 December 2018.^[67]

7.20 The Commission noted a consideration in relation to small jurisdictions: good governance is essential in view of guaranteeing the effective protection of human rights. That being said, there is no uniform constitutional model to achieve good governance. Especially with regard to smaller jurisdictions, it must be acknowledged that governance models that work in larger jurisdictions may not always be realistic within the context of a smaller island (paragraph 17 of the Opinion).

7.21 The Commission recorded that, following the “British” model, in Malta the major part of prosecutions is carried out under the authority of the Police. It is the Police who investigate crimes and who then press the charges in court. Only for the most serious crimes does the office of the Attorney General prosecute directly. In complex cases, the Police seek advice from the Attorney General, but they are not obliged to follow this advice (it seems that usually this advice is followed in practice). The task of the prosecution is, therefore, split between the Police and the Attorney General. The Committee state that this ambiguous system is problematic from the viewpoint of the separation of powers, notably taking into account the roles of the Attorney General and the Police Commissioner, which makes it open to criticism when considering politically controversial or sensitive prosecutions.

7.22 Article 91 of the Malta Constitution establishes an Attorney General who is appointed by the President acting in accordance with the advice of the Prime Minister. The Attorney General must be qualified for appointment as a judge of the Superior Courts. The Attorney General is independent in the exercise of their powers to institute, undertake and discontinue criminal proceedings.

7.23 The Attorney General is also the Legal Adviser to the Government and represents the interests of the State in judicial proceedings and helps in drafting laws and agreements.

7.24 The Venice Commission consideration in relation to the Malta case is as follows. It was noted that the multiple roles of the Attorney General derive from British rule (which, it was noted, still exists in Cyprus for instance). Malta gained independence in 1964. The concentration of the powers of adviser to the Government and prosecutor in one institution makes the office very powerful. This is problematic from the viewpoint of the principle of democratic checks and balances and the separation of powers. In England and Wales, the two offices were separated in 1983 with the creation of the office of the Director of Public Prosecutions (DPP) as a result of the recommendations of the Phillips Royal Commission on Criminal Procedure in 1981. No such reform was undertaken in Malta. However, the Venice Commission’s delegation had the impression that a separation of the roles of the Attorney General is now widely accepted in Malta following a 2013 Report of the Commission for a Holistic Reform of the Justice System.

7.25 The Venice Commission considered arguments and reforms made, but nonetheless recommended that in order to avoid the double role of the Attorney General, an office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established in Malta. This would avoid the appearance of any possible conflict. This DPP should take over the prosecuting powers from the Attorney General, who could remain the legal advisor of the Government with functions normally exercised by an Attorney General in jurisdictions where an independent DPP is also in place. In order to ensure the independence of the DPP his or her security of tenure in line with accepted international practice is essential.

7.26 The Commission took the view that the structure of the office of the Attorney General should be altered and allow for a more transparent prosecutorial branch; and an office of an independent Director of Public Prosecutions or Prosecutor General or Public Prosecutor should be established; and that the Attorney General remain the legal adviser to the Government (paragraph 73).

7.27 The Commission, in the Conclusion, stated: “The double role of the Attorney General as advisor of the Government and as prosecutor is problematic.” (paragraph 144).

7.28 The Commission’s recommendation 2 was: “An independent Director of Public Prosecutions (DPP) with security of tenure should be established, who takes over prosecuting powers and the corresponding staff from the Attorney General, and the Police. Magisterial inquests should be absorbed into this function. The decisions of this DPP, notably not to prosecute, should be subject to judicial review.” (paragraph 145).

7.29 The Commission noted with regard to its recommendations as a whole, that: “Such changes would not abandon Malta’s legal traditions but would constitute an evolution that would provide more effective checks and balances than those in place today. Very importantly, holistic constitutional changes should be accompanied by adequate transitional arrangements and adopted as the result of a process of wide consultation in society. It is important that the citizens have a chance to take ownership of these amendments.” (paragraph 146).

7.30 The Government divided the Office of the Attorney General, separating advisory and prosecutorial functions, thereby creating the State Advocate's Office by virtue of Act XXV of 2019, which was crystallised in Chapter 603 of the Laws of Malta. This required the enactment of a new Article in the Constitution, notably Article 91A.

7.31 The State Advocate acts as the Government's principal adviser in matters of law and legal opinion. He or she has the task of acting in the public interest and safeguarding the legality of State action. The State Advocate enjoys constitutional independence and is not subject to the scrutiny, direction or control of any other person or authority in the performance of their functions. The State Advocate's Office also carries out other duties and functions such as those which may be conferred by the Constitution or by other provisions of Maltese law.

7.32 The State Advocate also advises the Parliamentary Committees, assisting in any drafting required by the said committees. In addition, the State Advocate represents the Government, its Ministries, departments and entities in cases in Malta and abroad. The State Advocate also reflects the physical incorporation of the State when an individual wishes to sue a State body that does not have its own standing to bring proceedings, and acts as a contact point for the purposes of international affairs, such as service of documents to, and from, counterpart agencies abroad, or the taking of evidence in Maltese or foreign courts.

7.33 The Venice Commission issued 2 subsequent Opinions. Opinion No 986/2020, adopted on 19 Jun 2020, was given on proposed legislative changes by Malta.^[68] Comments were made on prosecution in paragraphs 53 to 60. It was noted that in principle the Maltese authorities have chosen the mirror image solution to that advocated in the 2018 Opinion. The main goal, i.e. the separation of the dual functions of the Attorney General was achieved. The goal is to be achieved in stages however, due to a lack of resources. A further Opinion No 993/2020^[69] was given on ten Acts and bills implementing legislative proposals on other aspects of the matters referred to the Commission.