Zenith directors claim they are being tried twice for same offence

The directors of Zenith Finance, formerly MFSP, have filed constitutional proceedings against the State, arguing that criminal proceedings against them and the accountancy firm breach their right not to be tried twice for the same offence.

In a constitutional application filed today and signed by lawyers Edward Gatt and Mark Vassallo, Lorraine Falzon, Matthew Pace and Zenith Finance Ltd argued that in May 2018, the Compliance Monitoring Unit of the FIAU had found the company guilty of contravening several regulations, after a year-long investigation, and fined them €38,750.

The fine was paid soon after.

Zenith had been fined over an alleged €650,000 bank transfer between former OPM Chief of Staff Keith Schembri and former Times Of Malta managing director Adrian Hillman, which was deposited in client accounts held by MFSP, now Zenith Finance, for further reinvestment. The funds were transferred to one of Schembri’s American accounts, and then distributed to other accounts.

But in March 2021, the two directors were themselves charged with laundering money obtained through criminal activity, between 2008 and 2020. Pace was further charged with making a false declaration to the authorities, forgery and making use of forged documents.

An FIAU representative was summoned to testify in the criminal case and confirmed on oath that the offences they were charged with, related to the same facts as those for which they had been fined.

The lawyers argued that the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the Constitution, prohibits the prosecution of persons over a crime for which they had already been definitively sentenced or cleared of. This is a universally recognised fundamental right known as ne bis in idem, they stated.

They submitted that the investigation by the FIAU and the subsequent fine made this a “classic example” of the principle and that case law on the topic was “copious.”

Jurisprudence has established that criminal prosecution over acts which had already been subjected to administrative fines would lead to those accused of wrongdoing being punished twice for the same offence, in breach of their human rights, said the lawyers.

Pace and Falzon asked the court to declare that the ongoing criminal proceedings breached their fundamental rights and consequently declare them illegal and order their cessation.