Judge rejects Repubblika fair trial claim, but NGO pledges to fight on

Judge notes State Advocate had based its first argument on the premise that the NGO had been completely extraneous to the inquiry in question

Repubblika President Robert Aquilina (Photo: James Bianchi/MaltaToday)
Repubblika President Robert Aquilina (Photo: James Bianchi/MaltaToday)

A judge has rejected a Constitutional case filed by Repubblika over a magistrate’s refusal to recuse herself from presiding over the challenge proceedings filed by the NGO.

Repubblika had filed a protest over the State’s failure to prosecute Pilatus bank officials.

The NGO had filed the case against the State Advocate in July 2022, claiming that Magistrate Nadine Lia’s refusal to accept the NGO’s request that she recuse herself -on grounds that included the fact the magistrate is related by marriage to lawyer Pawlu Lia, who represented former prime minister Joseph Muscat and his chief of staff Keith Schembri - two central characters in the Egrant investigation- in various court cases.

The lawyer had also set the terms of reference for the Egrant inquiry.

The NGO had argued, amongst other things, that this meant that the magistrate “could never provide the guarantees of impartiality required by the Constitution.” 

Robert Aquilina, Repubblika’s president, had testified before Madame Justice Audrey Demicoli, presiding over the First Hall of the Civil Court in its Constitutional jurisdiction, in September.

Aquilina had exhibited documents which showed that the court expert appointed to examine MFSA email accounts, as part of the magisterial inquiry into Pilatus Bank, had discovered correspondence from 2016 between Pilatus owner Ali Sadr Hasheminejad and Schembri.

He also told the judge that the inquiry had recommended that Hasheminejad and five other officers ‘amongst others’ be prosecuted for money laundering, criminal conspiracy and other crimes, besides the prosecution of the bank and its MLRO. The recommended prosecutions never materialised, however, bar one - the MLRO Claudeanne Sant Fournier, who was charged with money laundering alone, omitting the other criminal offences that had been ordered by the inquiring magistrate. The magistrate’s orders for the issuing of International Arrest Warrants had also been ignored by the AG, Repubblika said.

The State Advocate, in his reply, had described the action filed by Repubblika as an attempt at forum shopping and an abuse of the judicial process. 

The NGO also lacked the necessary juridical interest and victim status to file such a case, the State Advocate argued.

Deciding the case this morning, the judge noted that the State Advocate had based its first argument on the premise that the NGO had been completely extraneous to the inquiry in question, was not a suspect or accused and neither was it the injured party.

While it was true that Repubblika was a party to the challenge proceedings, that case could lead to the filing of criminal proceedings against third parties and not the NGO. “Therefore, there is no breach of the group’s right to a fair hearing… [because] effectively, it will not lead to the group being placed in a worse or more advantageous position to that which it is in today.”

The court conducted a detailed examination of the elements of “victim status,” as applicable under the Constitution and the European Convention on Human Rights. Quoting from a number of legal scholars, the judge highlighted the requirement that “there must also be something ‘at stake’ for the applicant,” for a dispute to be deemed genuine and of a serious nature. Supposing that a dispute exists, it is still necessary to show that civil rights and obligations are being determined by the decision…This will be the case when the decision is ‘directly decisive’ for the civil rights and obligations concerned.”

It was evident, said the court, that it was not enough that the plaintiff be a victim or a potential victim, and enjoy victim status, but must also show that it will be personally affected by the proceedings which it is claiming will breach its fundamental rights.

The purpose for which Repubblika had been set up was not a private or personal interest, but in the interest of the general public, noted the court. 

This meant that the challenge proceedings were not filed for a personal or private interest, and therefore the outcome of those proceedings would not impinge on the private, personal or economic rights of the NGO’s members.

This meant that Repubblika cannot be treated as a victim under the applicable dispositions of the Constitution and European Convention on Human Rights, ruled the judge.

Even if, for the sake of the argument, the NGO were to qualify for victim status, said the court, case law had clearly established that one could not claim a human rights breach in proceedings leading to criminal charges against third parties, unless that case is intrinsically tied to compensation for civil damages. In addition to this, cases filed in the public interest, are not treated as proceedings dealing with civil rights.

The judge, therefore dismissed the case, ordering Repubblika to also bear the costs.

In a reaction posted on Facebook, Repubblika president Robert Aquilina said that today’s judgement implied that civil society did not have a right to a fair hearing under Maltese law.
Repubblika would take “all the necessary steps to receive a fair hearing and for justice to be served,” Aquilina pledged.

“This legal hurdle is not going to discourage us. We have met many legal hurdles over the past five years, but we have always overcome them…A technical hurdle will not stop us from cleansing our country from corruption and abuse,” he wrote.