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“A criminal case does not bring you back a dead person…” These were the mind-boggling words uttered by the former Attorney General Anthony Borg Barthet last year in a radio interview.
Borg Barthet was being asked about his decision to bury criminal procedures against a medical consultant in the case of the late Andrea Massa a seven-year-old Naxxar boy who died after a series of unforgivable medical blunders.
An Attorney General in Malta is obliged on the one hand to advise the State, but he also has an obligation to prosecute.
Over the last ten years former Attorney General Anthony Borg Barthet, now appointed by the government as a judge in the European Court, has applied his unique – if debatable - right to stop criminal procedures by applying what is known in legal jargon as Nolle Prosequi.
If he decides to shelve a case there is no right of appeal against his decision. Nolle Prosequi allows an Attorney General to be the jury, the judge, the appeals court and the Chief Justice.
During the last ten years this right has been applied on seven different occasions, and the most shocking application of the privilege was the decision to shelve legal procedures against a medical consultant at St Luke’s hospital accused of the unlawful homicide of Andrea Massa.
The actions of Borg Barthet are within his remit as Attorney General. But it uncovers a privilege that is controversial, draconian, and out of touch with modern thought. One that puts to shame the purpose of the judicial system.
During a radio programme hosted by PBS consultant Joe Borg and Dr George Abela last year, Anthony Borg Barthet defended his right to bury the case.
Looking into the tragic death of the young boy, Magistrate Consuelo Scerri Herrera, known for her efficient and ‘clinical’ investigations concluded there was sufficient evidence to initiate legal proceedings against the consultant.
The accused consultant was expected to oversee Andrea Massa during what is normally a routine medical intervention – one that does not usually result in complications. As is all too often the case in Malta, the name of the consultant has been withheld for publication, though his name is common knowledge in a country where all news spreads like bushfire.
The same magistrate was also made to suffer the rebuke of the Attorney General over her conclusions in the investigations into the Foundation for Tomorrow’s Schools.
In this instance Borg Barthet described Magistrate Scerri Herrera as having been on a fishing expedition. It later transpired from the transcript of her investigations into the FTS that there was ample evidence to warrant further action.
Talking to MaltaToday, the parents of the late Andrea Massa highlighted the cases of many individuals they have met during the course of their publicised ordeal who have vented their sadness and frustrations about ‘mistakes’ at hospital which led to the demise of their loved ones.
The Massa’s were shocked when they discovered that their case had been kicked out by the intervention - of all people - of the Attorney General.
It hurt them more, to discover that during the radio programme on PBS in February of last year, Borg Barthet had said: “I mean the victim will never be reintegrated with his family members, and one should not take a decision to keep them happy. I mean you should take a decision.”
He went on to state: “Now I am not saying that I was not mistaken in my decision (to declare the criminal proceedings against the Consultant Nolle Prosequi), or that it is impossible that I may have been mistaken, but before taking the decision, I had seen much and this was the conclusion that my conscience dictated me. This is all that I can say. Now whether I was mistaken or otherwise (in my decision), may God forgive me”.
When contacted by MaltaToday on Friday, an acerbic Borg Barthet stood by what he had said on the radio programme
“I still think that I had to do what I did according to my conscience… I don’t think the scientific conclusions I had in front of me pointed towards the negligence of the person involved. I still have that opinion.”
His riposte contrasts with the findings of two magistrates and the internal report compiled for the Health department. A report, which the Minister of Health said he could not table on the House of Representatives because it would divulge the name of the deceased.
The name of the deceased is known to all, he is Andrea Massa, then aged seven, a boy from Naxxar.
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