Dalligate: Constitutional Court reverses decision to close evidence against Zammit

The Constitutional Court has reversed a court’s decision to force the closure of the evidence against former John Dalli canvasser Silvio Zammit and ordered the Attorney General to pay Zammit €2,000 in compensation for delays in concluding the case against him.

Zammit, who was charged in 2012 with trading in influence and complicity in the alleged request of a €60 million bribe from a Swedish tobacco company, had accused the Attorney General of ignoring the Constitutional Court and dragging his feet by refusing to declare his evidence closed in the legal saga that followed.

This meant that the case could not progress to the subsequent trial stage.

The attempted bribery had cost former European commissioner John Dalli his place in the Brussels executive in 2012. Zammit had been a canvasser for Dalli at one point. But an EU anti-fraud investigation by OLAF had found circumstantial evidence that Zammit was calling Dalli on the phone in between conversations with snus producer Swedish Match and the European smokeless tobacco lobby Estoc. Zammit had been approached by an Estoc consultant, Maltese lawyer Gayle Kimberley, to obtain access to Dalli in a bid to lift a retail ban on snus, a chewable form of tobacco. Dalli was investigated but never charged by the police in Malta. He has denied any wrongdoing.

In April, after Zammit sought recourse in the Constitutional Court due to the inordinate delay in declaring the evidence closed, the court ordered the criminal proceedings to continue. The Attorney General had filed an appeal, which was denied.

The acts of the case were sent back to the magistrates’ court to continue being heard, but had to be reassigned to a new magistrate, after the presiding magistrate was promoted to judge. This led to more delays.

Last October, the First Hall of the Civil Court declared that all this meant that Zammit’s rights were breached, and ordered the compilation of evidence against the businessman to be closed.

But the Attorney General filed an appeal to this judgment, arguing that Zammit contributed to the delays by refusing to provide a voice sample when requested.

In a judgment handed down on Thursday, the Constitutional Court presided by Chief Justice Mark Chetcuti, Mr Justice Giannino Caruana Demajo and Mr Justice Anthony Ellul, declared that the delays which continued after the Constitutional Court’s ruling should not have led to the order that the Court of Magistrates as a court of criminal inquiry declare the prosecution’s evidence closed – this when considering that the proof the prosecution needed to present hadn’t been collected due to the plaintiff’s refusal to give a voice sample.

“It is true that this means there is more delay to close the prosecutions’ evidence, but after the decree of 21 March 2019, there is also delay because of the plaintiff’s refusal.

“It is now up to the Court of Magistrates as a court of criminal inquiry to decide on how it will proceed, in view of the fact that the plaintiff is refusing to give a voice sample, invoking his right to silence.”

The AG had declared in January 2019 that he had further evidence to produce. Therefore the Court of Magistrates could not ask the accused if he wished his case to be tried summarily, said the judges.

The court ordered non-pecuniary damages at €2,000 for the delays incurred between July 2018 and March 2019.

It overturned the part of the judgment which ordered the Court of Magistrates to declare the prosecution’s evidence closed, and denied the request to immediately declare the evidence closed. The judges also ordered the Registrar of Courts to immediately send a legal copy of this judgment to the court of magistrates hearing the compilation of evidence against Silvio Zammit.

Zammit is represented by lawyers Edward Gatt and Kris Busietta.

Earlier this week, the European Union’s court of justice rejected a claim by former European Commissioner John Dalli for €1 million in damages caused by what he said was “unlawful conduct” by the European Commission as a result of the termination of his office. In 2015, the General Court had already dismissed an action by Dalli to annul the ‘oral decision’ of his 2012 termination from office as well as turning down his claim for €1.9 million in material damages. The ECJ then dismissed an appeal in 2016.