MaltaToday’s quick guide to magisterial inquiries

Jason Azzopardi filed seven requests for magisterial inquiries in 2024. The law empowers him and any other ordinary citizen to make such requests. But how is a request filed and what happens throughout the process? This is MaltaToday’s quick guide to unravel some of the frequently asked questions about magisterial inquiries. 

Can an ordinary citizen file a report with a magistrate asking that someone suspected of wrongdoing be investigated? 

Yes. The Criminal Code allows ordinary citizens to file a report, pass on information or lodge a complaint with a magistrate, requesting an inquiry into suspected wrongdoing. 

Can a magisterial inquiry be requested for all types of crime? 

No. The law makes it clear that a magisterial inquiry can be initiated if the alleged offence carries with it a punishment of imprisonment exceeding three years and the “subject-matter of the offence still exists”. 

So, what information should the complaint filed by an ordinary citizen contain? 

Where a private citizen requests the Magistrate to carry out an inquiry, the report, the information or the complaint shall contain “a clear designation” of the person suspected to have committed the offence. The complaint must also include what the suspected offence is and the manner by which it may have been carried out. 

How is the magistrate chosen? 

At this stage the complaint is received by the duty magistrate. Every day a magistrate is assigned by roster to be on call. The duty magistrate hears cases involving people charged by the police on the day and is also on call for any inquiries that may have to kick off, such as those that happen when a car accident involves death or serious injury. A private citizen who files a request for a magisterial inquiry to be held will be doing so to the duty magistrate on the day the request is made. 

What happens when the duty magistrate receives a citizen report? 

The law states that the magistrate shall order the report to be given to the suspect identified in the complaint, allowing the person enough time to reply. It is after this time lapses that the magistrate shall decide whether to hold an inquiry. 

What are the criteria that determine whether an inquiry can kick off? 

Before deciding to hold an inquiry, the magistrate has to establish that the “necessary pre-requisites” for holding such an inquiry exist. These requisites include: identification of the suspect; the suspected offence should carry a penalty exceeding three years; the subject-matter still exists; and what the offence is and how it may have been carried out. 

If the magistrate decides that the requisites for an inquiry do exist, what happens next? 

Any decision the magistrate makes, whether in favour of an inquiry being held or against, shall be communicated to the person who filed the report and the suspect indicated in it. Any one of them may, within two working days, appeal the decision in front of the Criminal Court. The law states that the Criminal Court shall give its decision on the appeal “with urgency”. 

What happens if no one appeals or if the appeal confirms that an inquiry can be held? 

Once a final decision is taken that an inquiry can go ahead, a different magistrate is chosen by lot from among all magistrates to conduct the inquiry. 

Why is a different magistrate chosen? 

This is done to avoid the possibility of someone filing a complaint with a particular magistrate they feel may be closer to their cause or beliefs – what is known as forum shopping. The law ensures that the magistrate who will be carrying out the inquiry is someone chosen by lot and not by design. 

What is the purpose of such an inquiry? 

These types of inquiries are known in legal terminology as in genere. The main aim of the in genere is to preserve the evidence of the commission of an offence so that it is eventually used when a person is charged with the relative offence. The magistrate can request records, documents, sequester electronic devices, interrogate people and perform any other function necessary to collect evidence related to the alleged offence. This may be done through the appointment of experts. 

Can a magistrate appoint experts? 

Yes. The law allows the magistrate to appoint various experts to assist them in carrying out the inquiry. 

What happens when the magistrate closes the investigation? 

As soon as the experts present their reports and the investigation is closed, the magistrate makes a final report. In legal terminology, this report is called the proces-verbal. The report includes the findings the magistrate deems relevant to the case and any recommendations they deem fit. The proces-verbal, together with all the evidence gathered and the experts’ reports are sent to the Attorney General to take the appropriate steps. The AG may decide to proceed with criminal action forthwith as happened in the Vitals inquiry or opt to further the investigation by requesting the police to interrogate any suspects indicated in the report. The report may also conclude that no grounds for criminal action exist. 

Is this inquiry public? 

No. The in genere is secret and the process-verbal is not released to the public unless the AG decides to do so. In genere inquiries should not be confused with public inquiries such as those related to the Daphne Caruana Galizia murder and the Jean Paul Sofia construction death. Public inquiries are by their very nature public, have a much wider scope and do not seek to probe criminal behaviour or acts. 

A magisterial inquiry is regulated under the Criminal Code, while a public inquiry is regulated by a different law, the Inquiries Act. 

Does a magisterial inquiry stop police from investigating? 

No. An in genere inquiry does not stop the police from continuing to investigate the crime independently. Indeed, if the police feel they have enough evidence to charge someone, a magisterial inquiry can come to an abrupt end. The police may also request that a magisterial inquiry is held. 

What is the government planning to change in this process? 

From comments the Prime Minister has made in public, the government appears to be considering changes to the manner by which ordinary citizens can request a magisterial inquiry. However, so far, neither the Prime Minister nor the Justice Minister have provided details of the planned changes. Given the political rhetoric that has been making the rounds it seems that the changes could concern the quality of the information the citizen is expected to supply when seeking a magisterial inquiry. Several government exponents and ministers have written on social media to lament the fact that Jason Azzopardi has largely based his requests for inquiries on investigative news reports and conjecture. However, the planned changes remain unknown despite the Justice Minister tabling the First Reading of a Bill to amend the Criminal Code.