Before the Board of Public Inquiry in the Assassination of Daphne Caruana Galizia

Before the Board of Public Inquiry in the Assassination of Daphne Caruana Galizia Note of Submissions of Peter Caruana Galizia and Matthew, Andrew and Paul siblings Caruana Galizia. Respectfully submit: The Board has authorised the presentation of written submissions on its terms of inquiry to be done by the 15th May 2021 and the family of Daphne Caruana Galizia wish to avail themselves of this opportunity and hereby make their submissions; The submissions herein contained are in addition to the submissions already presented to the Board of Inquiry by email and which dealt with the second line of inquiry raised in the Board’s terms of reference. These submissions now deal with the first and the third line of inquiry. Chapter 1 - General Introduction 1. Daphne Caruana Galizia was murdered on 16th October 2017, in a brutal, intricate assassination close to her home in Bidnija. She was an investigative journalist, writer and anti-corruption activist, and the evidence in this Inquiry has laid bare that she was, undoubtedly, murdered for her journalism. She has been described as “Malta’s crusading scourge of official corruption, cronyism and incompetence… the embodiment of investigative journalism: forthright, uncompromising and totally fearless.”1 The Atlantic has described how, “her scoops consistently made life uncomfortable for the powerful, whether in banks or the prime minister’s office.”2 2. Daphne Caruana Galizia was a much-loved mother, wife, daughter, sister, and aunt. Her assassination has devastated her family, on whose behalf these submissions are filed with the Board of Inquiry. 3. This Inquiry’s Terms of Reference require the Board of Inquiry to investigate independently, and to report, on the assassination of Daphne Caruana Galizia 1 Citation for the 2018 Commonwealth Press Union Media Trust Astor Award, awarded posthumously to Daphne Caruana Galizia on 17th April 2018. 2 The Atlantic, ‘Who murdered Malta’s most famous journalist?’ 8th February 2018, available at https://www.theatlantic.com/international/archive/2018/02/who-murdered-daphne-caruana-galizia/552623/ 1 | P a g e Submissions of Family Caruana Galizia and on the events preceding, concomitant with, and following upon, her assassination. The terms of reference identify, in paragraphs 1 - 3, three lines of inquiry, namely: 4. “[with view] to determining whether any wrongful action or omission by, or within, any State entity facilitated the assassination or failed to prevent it. In particular whether (a) any State entity knew or ought to have known of, or caused, a real and immediate risk to Daphne Caruana Galizia’s life including from the criminal acts of a third party and (b) failed to take measures within the scope of its powers which, judged reasonably, it might have been expected to take in order to avoid that risk”. 5. “[with a view] to establishing whether the State had and has in place effective criminal law provisions and other practical means to avoid the development of a de facto state of impunity through the frequent occurrence of unresolved criminal acts and to deter the commission of serious criminal offences, backed up by law enforcement machinery for the prevention, suppression, investigation and punishment of serious breaches of the law”3; and 6. “[with a view] to determining whether the State has fulfilled and is fulfilling its positive obligation to take preventive operational measures to protect individuals whose lives are at risk from criminal acts in particular in the case of journalists.” 7. Although submissions are structured as broken down according to these three strands, we respectfully emphasise at the outset that they are not each entirely self-contained; they overlap and intersect. Together, they reflect the full extent of the terms of reference establishing this Public Inquiry. The terms of reference require this Board to inquire and determine whether state entities were compliant with standards of governance required by established principles of democratic governance, including the protection of human rights. 8. The main issues of human rights that are pertinent to this Inquiry are the substantive requirements of the right to life enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms4, as well as the protection of freedom of expression protected under Article 10 thereof, and the combination of these two rights. The main issues of governance 3 Submissions on behalf of the family on this second line of inquiry have already been presented to the Board. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, as enshrined in ordinary legislation in Chapter 319 of the Laws of Malta, The European Convention Act. 2 | P a g e Submissions of Family Caruana Galizia that the Board is established to determine compliance with are rules and principles established in the Constitution of Malta and in ordinary legislation. These standards and duties are explained in more detail when making submissions under the three particular lines of inquiry. 3 | P a g e Submissions of Family Caruana Galizia Chapter 2 - First line of Inquiry - State Responsibility Introduction 1. The terms of reference for this Public Inquiry into the assassination of Daphne Caruana Galizia require this Board to determine, inter alia, whether any wrongful action or omission by, or within, any State entity facilitated the assassination or failed to prevent it. The first line of inquiry set in these terms of reference specifically require this Board to determine “whether (a) any State entity knew or ought to have known of, or caused, a real and immediate risk to Daphne Caruana Galizia’s life including from the criminal acts of a third party and (b) failed to take measures within the scope of its powers which, judged reasonably, it might have been expected to take in order to avoid that risk”. 2. The determination of this first line of inquiry therefore requires the Board to determine not only whether the State or any of its entities actively participated in any wrongful action that may have facilitated the assassination of Daphne Caruana Galizia or failed to prevent it, but also whether they did so by omission, be it passively or purposely. Yet, this first line of inquiry is not merely one of verifying actions or omissions relevant to the scope of this Inquiry, but also demands the determination of whether any State entity “knew or ought to have known of, a real and immediate risk to Daphne Caruana Galizia’s life”, and consequently failed to take measures to avoid that risk. 3. This means that the inquiry is not simply into actions or omissions taken with intent or without intent that facilitated the assassination or failed to prevent it, but also into whether it was the responsibility and duty of any State entity to have known that Daphne Caruana Galizia was at risk of harm. The terms of reference establish the standard by which the State’s actions and omissions are to be judged and that standard is one of “reasonableness”, that is considering all the circumstances whether it is reasonable to expect the State to have realised, become aware or know that its actions or omissions were placing Daphne Caruana Galizia at risk of harm. 4. This line of inquiry does not require the Board to determine any action or omission that amounts to an offence at law. Indeed, that investigation rests with other State entities the work of which forms part of the inquiry which this Board was entrusted with. So while this Inquiry is not about the determination of whether any particular person or group of persons through actions or omissions 4 | P a g e Submissions of Family Caruana Galizia may have with intent or otherwise participated in the commission of an offence, it is about the determination of whether the entity within which that person or group of persons who, through their actions or omissions may have with intent or otherwise facilitated the assassination or failed to prevent it when it is reasonable to expect them to have known of the risk, was negligent, unethical, or followed low standards in the carrying out of its duties. 5. This line of inquiry does not require the Board to determine whether any action or omission of a private person, that is one not related or connected with the State or any of its entities, facilitated the assassination. The behaviour that is under scrutiny is that of persons exercising some role within any State entity, participating in any State related network or entity, or who benefitted from any State entity action or omission. This means that the behaviour of those who would otherwise be considered as private persons may fall under the scrutiny of this Inquiry only in so far as it exposes and provides this Inquiry with information on the actions and omissions of State entities with which they corresponded or with which they were connected. Wrongful action or omission by or within state entities – Standards established at law 6. For the purposes of this Public Inquiry action is wrongful where it falls below the standards of governance, of the rule of law, of human rights and of established legal principles which are in the public interest. Actions of state are wrongful where they are contrary to the interests of a democracy. Actions which are classified at law as being criminal may be flagged by the Public Inquiry but it is not its role to identify such criminal action nor to assess State action vis-à-vis the standard of evidence established in criminal law. 7. Article 1 of the Constitution of Malta itself establishes the basic parameters which regulate all State actions. When it declares that “Malta is a democratic republic founded on work and on respect for the fundamental rights and freedoms of the individual.”5 it obliges all State entities to work in the interests of democracy and to limit the exercise of powers and discretion to what is necessary within a democratic society.

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