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The Independent Authority against Corruption ("the Authority") hereby announces the following:
1. After conducting an Investigation and after studying the Report of the Inspection Officers it had appointed, the Authority concluded that, a Police Officer, who had been called as a witness in the proceedings, had disobeyed provisions of the legislation relating to the establishment and functioning of the Authority.
2. In particular, the said Officer, while appearing before the Inspecting Officers, stated that he was not obliged to answer their questions and was answering at will, refusing to answer some of them.
3. Section 8 (b), of the Law on the Establishment and Operation of the Independent Anti-Corruption Authority, 19 (I)/2022, imposes an obligation on any person who receives a Summons to appear, either before the Authority or before the Inspecting Officers, not only to attend, but also to answer all questions put to him. There is only one proviso to this obligation: a witness may not answer only any question which tends to incriminate him. Breach of this obligation is a criminal offence.
4. Correspondence on this matter has been exchanged between the Attorney General of the Republic on the one hand and the Transparency Commissioner on the other and has been completed, with both sides remaining firm in the opposing positions they have expressed.
5. As a first step, the Authority has sent the relevant documents to the Prosecutor General with a recommendation for a criminal investigation and possible prosecution of the above mentioned Officer
6. The Attorney General did not approve the above request, arguing, inter alia, the following:
(a) Since the Officer in question was from the outset a subject of investigation and therefore suspected of committing offences, he should have been made aware of the law, his rights should have been explained to him, and in particular that he could exercise the right to silence. In fact, the minimum rights of a suspect should be applied and the violation of this right prevents any further investigation of the case.
(b) The Officer responded to the Call and presented himself by delivering a three-page confidential statement, providing information about the Investigation, answered questions and was even assured by the Inspecting Officers at various points in the testimony that it was "okay" not to answer, but that he should be asked the questions. The Inspection Officers' statements were far from a manifestation of the Officer's intent to complain.
7. In addition to the above, the Attorney General notes that, provisions of the relevant legislation need to be amended, indicating the willingness of the Legal Service to contribute positively to such a development.
8. The Commissioner for Transparency, in response to the above, stated the following. These can be paralleled with the powers of the Commissions of Inquiry appointed under the Commissions of Inquiry Act, Cap. 44, or even with the powers available to the Ethics and Sports Protection Commission under the Anti-Manipulation of Sports Events Act, Law 180(I)/2017.
(b) What the Authority applies is the same as that applied by all the Investigative Committees in so far as they have investigative and not investigative powers. That is, any witness is not given a recitation of the law under the Rules of Court or given a reference to a right to silence. In this regard, reliance was placed on relevant case law relating to Investigating Commissions.
[C] Accordingly, the Authority considers that the only obligation that Inspecting Officers appoint when a witness comes before them to give evidence is to warn him that he may not answer any question tending to incriminate him, subject to the proviso to Section 8(b), of the Act.
(d) Any other warning, under the Rules of Court, such as recalling his attention to the Law or right to remain silent, shall be subject to criminal interrogation not applicable to the proceedings of the Authority.
(e) Moreover, the right to silence is contrary to the express provision of Section 8(b), of the Act, which requires any witness who appears before the Reviewing Officers to answer all questions and provide information in his possession.
[F] Adopting the position of the Attorney General would cause complete confusion to witnesses since it would confront them with diametrically different positions (the right to remain silent on the one hand and the obligation to answer everything asked on the other).
[G] The Authority considers that, the demonstration of courtesy and statements by the Inspection Officers are not sufficient to remove the statutory obligations of a witness. The fact remains that, the Officer in question received a Summons to appear before the Inspection Officers, which consisted of 6 pages setting out both his rights and obligations. In fact, as he stated, before coming forward to give evidence, he had received legal advice.
Recommendation for amendment of legislation
9. The Attorney General's recommendation to amend the relevant legislation cannot be accepted at this stage. Such a procedure would be lengthy and, pending its outcome, would paralyse the Authority's investigations. Moreover, the legislation was enacted in 2022, i.e. recently, and many institutions and bodies contributed to its creation, and none of them suggested the inclusion of the provisions now mentioned by the Attorney General, provisions which refer to criminal investigation procedures and not investigations.
Compliance with Summonses sent by the Authority
10. The Authority considers that, there should be full and effective compliance with the Summonses it serves on any person. Any disobedience damages both its authority and effectiveness and should be dealt with promptly
11. It is emphasised that as part of its overall responsibilities, the Authority and Inspecting Officers have sent out dozens of Summonses for production of both witnesses and documents and to all of them, so far, there has been a prompt and effective response. The case of the Officer in question is the only exception.
12. Following the above developments, the Authority is considering the possibility of registering itself as a Prosecutor in private criminal cases in cases of disobedience to the provisions of the relevant legislation. It is in contact with private lawyers for this purpose.
Extensions of the positions put forward by the Prosecutor General
13. Although the Advocate General states that there is no question of a negative impact on future recommendations of the Authority as long as each case is judged on its own merits, the Authority does not share this view.
14. What is apparent is exactly the opposite: that the Attorney General will refuse to proceed with a criminal investigation of any corruption case sent to him by the Authority, on the grounds that the suspect's rights were not respected during the investigation, as described above.
15. Such a development would severely damage the effectiveness and the work carried out by the Authority.
16. The only proper course for the Authority to follow is strict adherence to and application of the provisions of its own legislation.
17. Finally, the Authority states that it will not make any further statements on this matter.
(MS/NYAN)
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