Mere allegations do not suffice | Joseph Brincat

Doughty Street Chambers believe the Maltese State is in violation of Article 2 of the European Convention of Human Rights in the investigation on the Daphne Caruana Galizia murder, in part because a Labour minister’s husband is involved in the investigation as deputy police commissioner.

What follows is a reproduction of the position taken by the European Court of Human Rights, in various cases.

The court first considered the obligations imposed by Article 2 in the case of McCann and Others v United Kingdom brought by the relatives of three individuals shot by members of the SAS in Gibraltar. This case imposes two obligations to the State: To conduct a full, open and transparent investigations into why the public bodies have taken a life. This should be public, independent and should involve members of the family of the victims (R (Amin) v S.O.S. Home Dept) A positive duty to refrain from unlawful killing, better expressed as the “Duty of command, control and training” i.e. to ensure those who take the life (such as police marksmen) are highly trained and overseen at all times. If the state has not followed these obligations then it will be found to be an unlawful killing.

Article 2 has been interpreted to include the positive requirement of the state to ensure preventative measures are taken to protect citizens. The leading case on the matter is Osman v UK (Osman lost their case) and LCB (almost lost but important regarding healthcare).

Finally there is the procedural aspect of Article 2, which requires that loss of life is investigated and the perpetrators are brought to justice. The law should provide adequate and certain punishments.

Killing by state agents

A judgment which deals with the Italian system, very close to ours, is that of Giuliani and Gaggio v Italy (24/3/2011). The facts were different, as the person was killed by the carabinieri during a demonstration in Genoa (answers are verbatim from this judgment).

1. When is an investigation to be independent from police officers?

“300. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events.

2. What are the rights of the family in an unlawful killing by State agents?

“303. In addition, the investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case.”

3. Are there limits to the rights of the family?

“304. … Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investig ative measure made by a relative in the course of the investigation.”

4. How should authorities act in such circumstances?

“Para 305: However, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.”

Giuliani and Gaggio lost their case.

Murder by private individuals

Another Italian case was Mastromatteo vs Italy (24/3/2002). Four bandits, three on prison leave, killed a young man in his car. The family complained to the ECHR that the state was negligent in releasing prisoners on leave.

“89. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished…

“90. The form of investigation may vary according to the circumstances. In the sphere of negligence, a civil or disciplinary remedy may suffice (see Calvelli and Ciglio, cited above, § 51).”

The decision of the Court was: “93. The Court notes that the Italian authorities began and completed an investigation satisfying the above criteria, and that M.R. and G.M. were convicted of A. Mastromatteo’s murder and given long sentences. Furthermore, M.R. and G.M. were ordered to compensate the applicant, who had lodged a claim for damages in the proceedings, that is, to make him a down payment immediately on the amount that the civil courts would subsequently determine at the applicant’s request.”

Mastromatteo lost his case.

General observations

The Italian system provides for an enquiring magistrate. And then a magistrate for the compilation of evidence, giudice delle indagini preliminari (GIP) – very similar to ours.

Here are the comments about the system (taken from the Giuliani case).

“322. It is true that the carabinieri, that is, the armed force to which M.P. and F.C. belonged, were given the task of conducting certain checks (see paragraph 290 of the above case)... In the instant case, the law-enforcement agencies were already present at the scene and were thus able to secure the area and search for and record any items of relevance to the investigation.

“323. In the Court’s view, Mr Romanini’s appointment as an expert raises some more delicate issues, as he had openly defended the view, in an article written for a specialist journal, that M.P. had acted in self-defence (see paragraph 56)…. Nevertheless, Mr Romanini was just one member of a four-expert team He had been appointed by the prosecuting authorities and not by the investigating judge and was therefore not acting as a neutral and impartial auxiliary of the latter Accordingly, his presence was not capable, in itself, of compromising the impartiality of the domestic investigation.”

Our system

Our procedural system places very strong emphasis on the role of the courts. Mere allegations do not suffice. There must be proof. And the burden of proof lies on who makes the assertion.

Dr Joseph Brincat is a lawyer who has practised in the European Court of Human Rights and a former deputy leader of the Labour Party.