Government loses appeal as court confirms Tancred Tabone's human rights were breached

The government has lost an appeal it filed against a ruling that declarations before a parliamentary committee breached Tancred Tabone’s fundamental human rights.

The former Enemalta Chairman had filed court proceedings against the Prime Minister, the Justice Minister and the Attorney General, claiming a breach of his right to a fair hearing.

Tabone had been charged with fraud and money laundering in February 2013 after a scandal about oil kickbacks went public. The Criminal proceedings against him are still underway.

After the story about his arraignment broke, some politicians and public officials had made statements which were widely reported in the media. This, Tabone said, amounted to prejudicial pretrial publicity which was declaring him guilty before justice had time to run its course.

He had filed Constitutional proceedings for this reason.

The First Hall of the Civil Court in its Constitutional jurisdiction had refused his request to declare proceedings null, but ordered that the registrar of courts place a copy of the sentence in the acts of the criminal proceedings against Tabone.

The defendants had subsequently filed an appeal, arguing that the right to a fair hearing had to be evaluated over the totality of the proceedings and not in particular moments of it. As criminal proceedings against Tabone were still underway, the first court had been mistaken when it found a breach.

The First Court had found a breach of the presumption of innocence not because he could not be given a fair hearing but because the statements made about him could lead to the public perceiving him as being guilty before he is sentenced by the competent court, Tabone had claimed.

But the Constitutional Court dismissed this claim, ruling that this was damage that was already done and could not be remedied, “even if the criminal process is carried on with scrupulous observation of the procedural guarantees and also if the plaintiff is not found guilty, precisely because the breach is not connected to the penal process.”

The appellants had also complained that the first court had been wrong when it found a breach when the newspapers had reported what had been said in the public accounts committee in Parliament, despite it not being an official state pronouncement.

The court observed that when former Prime Minister Lawrence Gonzi had made the statement before the PAC committee, he had been a private citizen who had no power to make statements in the name of the State.

“Without entering into the discussion as to whether Dr Gonzi did well by saying what he said, the court observes that the State cannot be called to answer for something said by a private citizen.”

The same could not be said for the statement by Owen Bonnici, then a parliamentary secretary and therefore representing the government, however.

Bonnici had asked “So Mr Farrugia, at what point did you realise that Mr Tabone was involved in a circle of corruption?....I have absolutely no doubt that you gave them to him and that he took them I have no doubt either,” Bonnici had said, referring to a $400,000 bribe.

For this reason, the court ruled that these statements breached his right to the presumption of innocence and this part of the appeal could not be upheld either.

The appeal was dismissed and the judgment at first instance confirmed.