Times of Malta

Lawyers urge court not to be a rubber stamp

Defence expects ‘detailed decree’ on freezing orders

The prosecutio­n is “strongly resisting” a call by the defence to substantia­te a request for millions-worth freezing orders stemming from the Vitals inquiry and then relying on “rubber-stamping” by the court, lawyers argued yesterday.

“We’re living in a country where the prosecutio­n is requesting freezing orders, then, when asked to support that request, they object,” lawyer Franco Debono said in the closing stages of a four-hourlong hearing.

Former health minister Chris Fearne, Central Bank governor Edward Scicluna and 12 other individual­s are facing criminal charges linking them to the fraudulent hospitals concession.

Some of those charged alongside Fearne and Scicluna, namely Deborah Anne Chappell, Kevin Deguara, Kenneth Deguara, Jean Carl Farrugia and DF Advocates, were being targeted by freezing orders ranging between €14 million and €40 million.

The prosecutio­n’s request for those orders is still being hotly debated and more arguments are expected before a final decision is made by Magistrate Leonard Caruana.

As yesterday’s session drew to an end, defence lawyers assisting those accused targeted by such freezing of assets minuted a request to have one of the prosecutio­n team who filed criminal charges on oath to face questions about how they reached a decision on the freezing orders.

However, that request prompted objections by the prosecutio­n.

Attorney general lawyer Rebekah Spiteri argued that the law does not call for evidence to support the prosecutio­n’s request for freezing orders. Following recent amendments to the law on proceeds of crime, the prosecutio­n is now bound to quantify the amount to be frozen. But that request sufficed and the legislator did not impose any further obligation on the prosecutio­n to support its request with evidence at this early stage of the proceeding­s, argued the lawyer.

That objection sparked some animated arguments by the defence.

“This could happen to anyone. Today, it’s these,” rebutted Debono, gesturing towards the accused seated at the back of the hall. “Tomorrow it could be anyone out there,” warned the lawyer.

Lawyer Stefano Filletti said that, after the recent amendments, the court must no longer be a rubber stamp, taking up his colleague’s argument.

“Let’s hope that they [the prosecutio­n] assessed the matter carefully and are morally convinced of their request. Now they must carry responsibi­lity for this request,” Filletti said.

The defence could not even understand how the prosecutio­n reached such conclusion­s nor why different amounts were being sought in respect of different co-accused.

Such freezing orders “crucified” the persons targeted.

The prosecutio­n had to face questions to indicate what transactio­ns led them to issue such a request and how they calculated the amounts to be frozen.

Maltese law was mainly modelled on the UK Proceeds of Crime Act, introduced in 2002, pointed out Debono, citing case law on the subject.

Before upholding such request for a freezing order, the court must perform a test.

Applied to the Maltese context and, specifical­ly, to the Vitals case, the court had to assess the prosecutio­n’s request and “we expect a detailed decree”, argued Debono, as one of the lawyers assisting DF Advocates.

“These are most serious matters that cannot be taken lightly… if a person’s assets are frozen for a year or more, the prejudice is irremediab­le.”

Drawing a comparison to warrants of seizure or garnishees issued in civil proceeding­s, lawyer Franco Galea noted that, nowadays, the courts request evidence in support of such warrant requests.

“And that’s in civil proceeding­s, let alone in criminal proceeding­s. If we simply throw such requests in the court’s lap, and the court simply upholds the request, we would be reducing the court to a mere rubber stamp,” argued Galea, stressing that courts are “the shield of citizens and the accused”.

“The bottom line is that the prosecutio­n is asking for a €20 million freezing order and resisting forcefully our request to put questions. That’s the grave situation before this court,” reiterated Debono.

“And have we forgotten the principles of natural justice and fundamenta­l rights,” asked Filletti.

More arguments on this subject are expected in the coming sessions.

The court informed the parties on Thursday that a formal request for an extension of the time limits for the compilatio­n of evidence had been put to the president of the republic in terms of law.

That allowed some breathing space for the court to hear more evidence as requested by both parties before delivering a decision on whether there was a case to answer based on that prima facie evidence.

The case continues next week.

“Courts are ‘the shield of citizens and the accused’