Pilatus case: Prosecution summons witnesses but refuses to rule out charging them
Senior figures at Pilatus Bank had been summoned to testify on Wednesday, but when on the witness stand, all but one declined to testify because the prosecution could not guarantee that the witnesses would not face related charges in future themselves
The president of NGO Repubblika took the witness stand in a surprise move this morning, as the prosecution of Pilatus Bank and its former MLRO Claudeanne Sant Fournier continued before magistrate Donatella Frendo Dimech.
As the sitting began, defence lawyer Stefano Filletti made an unexpected request, asking the court to allow notary Robert Aquilina to testify.
Initially taken aback, the court was critical of the fact that the lawyer had not informed it beforehand. After some back and forth with FIlletti, and discussion as to under which article of the law the notary could be allowed to testify in this compilation of evidence, the court allowed it, noting that the law permitted the defence to summon witnesses who had not been identified by the prosecution.
The magistrate, however, added that she would be very cautious about expressing herself further on how the request was made - "that is during a sitting, with the witness already having been spoken to and waiting outside the courtroom - and this when neither the court nor the prosecution were informed of anything beforehand."
Ramon Bonnett Sladden, one of the lawyers from the Office of the Attorney General prosecting this case, informed the court that he was reserving the right to reply in writing. This interjection only served to earn him a rebuke from the court, however. “You cannot reply in writing, you should be prepared! I was not aware of this until this morning either.”
The act was a transgression of the institution of notification, remarked the court. The magistrate called Aquilina into the courtroom, asking him whether he was comfortable with testifying today, without having been notified. He replied that he was.
Having seen this, the court upheld Filletti’s request and allowed Aquilina to testify.
Court: Police’s responsibility to act on Schengen Information System alerts, not AG’s
Robert Aquilina took the stand to testify in his capacity as a notary. Before testifying, he declared in open court that a member of Sant Fournier’s family had used his services on one occasion in the past.
Asked by Filletti whether he had been pressured into giving his testimony today, he was categorical. “Absolutely not. The defence requested my testimony through my lawyer Jason Azzopardi.”
The witness proceeded to explain that he had been informed that in March 2020, the magistrate leading the inquiry into Pilatus Bank had endorsed the conclusions of the experts in the inquiry. Aquilina had made certified true copies of these documents. One is the conclusion of the inquiry into the operations of the Bank, in Aquilina’s own handwriting in a bid to protect the source of the information, which he attempted to exhibit.
Prosecuting lawyer Ramon Bonnet Sladden pointed out that a copy of the inquiry was already in the acts of the case, with the court agreeing with this observation.
Aquilina continued to testify, telling the court that he was not aware of any steps being taken against the other five people identified for prosecution in the inquiry’s conclusions.
Asked what he meant by this, Aquilina replied that a European Arrest Warrant had been issued and that the Attorney General had consented to it. At this point, Frendo Dimech, who has dealt with many an EAW in her previous role as Deputy Attorney General, pointed out that once an EAW was issued, the AG had no further part to play after issuing the necessary certificate. “It is entirely in the hands of the police and SIRENE.”
The Court also ordered the media not to publish the names that Aquilna was mentioning in connection with the EAW, explaining that this could tip off suspects.
This person had been allowed to travel to Malta and leave the country freely, without being arrested, Aquilina told the court. Media reports showed that until the beginning of this year, arrest warrants had not been issued against these individuals. “The original arrest warrants issued by Magistrate Ian Farrugia could not be found and had to be reissued by another magistrate,” he added.
Magistrate Frendo Dimech explained how when an EAW is issued, the issuing magistrate orders the police to issue an alert on the Schengen Information System. It is then disseminated by the police. When a match is detected on the system, it is then translated into the opposite language.
Frendo Dimech looked at the document exhibited by Aquilina. “Yes,” said the court. “This is something which should have been issued by the police and you are saying that it was not.”
“It is shocking that he came to court, testified and left while an EAW was in force against him,” added Aquilina. The Magistrate replied that “you have to see whether the AG had been informed.”
Frendo Dimech recognised that the document that Aquilina was exhibiting was a verbal note dictated by Mr. Justice Giovanni Grixti, which was already in the acts of this case.
“This does not form part of these proceedings,” the court observed.
Defence claims incomplete disclosure, selective prosecution by the AG
Further complicating the issue was the information given to the defence, however. “When I was given incomplete disclosure [in preparation] for Claudeanne’s interrogation, the reply I received was that this document was not in the hands of the police but had stayed with the AG,” Sant Fournier’s lawyer, Stefano Filletti, explained.
Filletti accused the AG of not providing the police with all the information relating to what the accused was suspected of, and that this breached her fundamental rights. “A few hours after I spoke to her, she was charged with different offences to those disclosed,” the lawyer went on.
He also questioned why only Sant Fournier had been prosecuted in connection with the Pilatus issue. “From her point of view, a fair trial, justice and transparency must not only be present in these proceedings but she must also be assured that there is no monkey business in the investigation. When I asked for information on this investigation I was stonewalled. It was subsequently confirmed that it was the AG who had directly ordered that the charges be issued,” Filletti told the court.
The court replied that the answers to those questions would not be found in the compilation proceedings, but required a constitutional case to be filed. “If a malicious prosecution is being alleged, that is the correct forum to make them [these questions],” Frendo Dimech said.
Prosecution unwilling to guarantee that its own witnesses would not be prosecuted
Today’s sitting was peppered with prosecutorial gaffes, repeatedly eliciting the court’s frustration, and laying bare the combined lack of experience on the prosecution bench in this case.
Senior figures at Pilatus Bank had been summoned to testify today, but when on the witness stand, all but one declined to testify because the prosecution could not guarantee that the witnesses would not face related charges in future themselves. The resulting impasse with every witness called to the stand, verged on the comical.
Former Bank director Philip Mercieca, assisted by lawyer Veronique Dalli and Bank Director Armin Eckermann, represented by lawyer Andre Portelli, both exercised their right not to potentially incriminate themselves when called to testify, after the prosecution failed to definitively declare that they would not face criminal charges on the basis of their testimony.
The court gave voice to its exasperation at the prosecution’s apparent inability to commit to a stance on whether or not the witnesses could themselves face charges in future. The magistrate briefly suspended the sitting to allow the prosecution to decide what it was going to do, but even after this, its stance remained effectively unchanged - the prosecution insisted that it currently had no plans to press charges against the witnesses, but couldn’t rule out doing so in future.
“This exercise should have been done before prosecuting. Enough!” remarked the magistrate, angrily. “Investigations should be concluded before pressing charges, this is why there is a bottleneck in court.”
“Do you know what you are doing? There is no complete disclosure. Do you know what you are getting yourselves into?” asked the magistrate, her tone almost imploring the prosecution to get its act together. “I cannot remain silent, because my oath is to seek the truth. Principles aren’t flexible. I’m not here to say nice words, I'm here to ensure that justice is served within the parameters established by the law.”
Filletti said that the prosecution was “picking and choosing who to charge”, in this case, his client.
Today’s final witness was Arianne Gaerty, whom the Court immediately recognised as having already testified in a previous sitting.
The prosecution explained that “new emails had emerged.” The magistrate asked to be shown these emails, observing that she had already highlighted them herself.
Gaerty was cautioned about the risk of self-incrimination by the court, but opted to testify regardless. Bonett Sladden showed the witness a handwritten note in the acts of the proceedings, asking her to tell the court “all she knew about it.”
“This is not my handwriting. I think this is Lana Headley’s,” the witness replied.
Faced with this, the prosecution struggled to come up with new questions for the witness, earning yet another rebuke from the court and the thinly-veiled scorn of the opposing counsel.
Gaerty was repeatedly asked by Bonett Sladden to tell the court “everything she knew” about these documents. “This was a standard email, from 29 June, from Jeanine Pearson to myself, about Sofitel’s financial documents,” she replied.
Sofitel was a hotel with no relationship with the bank, the court was told. “[The document] was a ‘proof of funds’ from [Sofitel’s] ultimate beneficial owners (UBOs), as the bank had a number of accounts with the same UBO.”
The witness explained that her instructions would come from the compliance department, but said she could not now pinpoint the individual who had issued these particular ones. “It could have been Claudeanne, it could have been several people…Even Antonella [Gauci] would send us instructions to press certain clients. I can’t say for sure.”
After the final witness testified, the court issued an order to the effect that the remaining prosecution witnesses, as well as all the remaining evidence, would have to be exhibited in court by the end of this month.
Police inspectors Claire Borg and Pauline Bonello are prosecuting, assisted by lawyers Ramon Bonnett Sladden and Marthese Grech from the Office of the Attorney General.
Lawyers Stefano Filletti and Maurice Meli are Sant Fournier’s defence counsel. Lawyer Roberto Cassar is representing Pilatus Bank in the proceedings.