Enemalta oil scandal: Judge orders prosecution to speed up case

Francis Portelli and Tony Cassar are also charged with complicity to trading in influence in public tenders and money laundering

Francis Portelli (centre) with Anthony Cassar (right) emerging from court
Francis Portelli (centre) with Anthony Cassar (right) emerging from court

A judge has ruled that the Attorney General is breaching the fundamental human rights of two men involved in the oil scandal, by delaying their case for over six years and ordered the prosecution to close its evidence by the end of 2019.

Two business partners in bunkering firm Island Bunker Oils – the Virtu group director Francis Portelli, 69 of Ta’ Xbiex, and Cassar Shipping boss Anthony Cassar, 69, of Tarxien – had been  charged with corruption and money laundering, albeit not specifically in relation to the alleged kickbacks paid to an Enemalta consultant.

They are being charged for their role as directors in Island Bunker Oils and its subsidiaries Eldaren Shipping, Oarsman Maritime, Anchor Oils, FP Holdings, AOH Ltd, Gringrams Holdings, Island Oils Holdings and Anchor Bay Maritime, for having corrupted former Enemalta chairman Tancred Tabone and Frank Sammut, the former chief executive of Mediterranean Offshore Bunkering Company Limited (MOBC), between the years 2002 and 2005.

Portelli and Cassar were also charged with complicity to trading in influence in public tenders and money laundering.

But although proceedings began with great momentum, this soon dwindled and no progress was registered in the case for six whole years.

On 7 March 2013, the prosecution began summoning witnesses, with the court hearing 16 witnesses by January 2014. By March 2014, a year into the proceedings, the prosecution informed the court it had to send some letters rogatory to Switzerland. So the compilation of evidence had to be suspended.

But Portelli and Cassar demanded that witnesses continue to be heard whilst the court awaited the response to the letters rogatory.

In November 2014, after some responses were received, the acts of the compilation of evidence were sent to the AG. But despite the compiling magistrate’s order that proceedings continue, the prosecution brought “absolutely no substantial evidence, besides one witness…” after that.

A sitting in May that year saw co-accused Tancred Tabone and Frank Sammut testify, but this testimony was inadmissible as they are co-accused in a related case.

Mr Justice Joseph Zammit Mckeon, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, noted that during the period between May 2015 and January 2019, 22 sittings were held in which practically nothing was done, after which the prosecution declared in no uncertain terms that it was not going to declare its evidence closed before Frank Sammut testified.

The end result is that the case has been stuck for six years.

By law, Frank Sammut cannot be brought to testify in favour or against the other accused person until proceedings in their regard are concluded, because he faces amongst other things the same charges as Portelli and Cassar, as an accomplice or co-principal.

Proceedings against Sammut are also ongoing since 2013 and are still in the prosecution’s evidence stage. “This means there is no hope that the proceedings against [Portelli and Cassar] will be concluded in the near future,” the pair argued.

The pair claimed that their right to a fair hearing under the European Convention on Human Rights was being breached, as was their right to property, the latter due to a freezing order over all their assets.

They asked that the court declare proceedings null as the AG did not want to declare his evidence closed. Alternatively, they asked that the court force the AG to send the acts back to the court of magistrates in short order and cancel the freezing order over their assets.

The AG denied using delaying tactics and argued that it was prosecuting “responsibly and with care”.

Waiting for the conclusion of other criminal proceedings was not abdicating its responsibility to prosecute with good speed, it said. The law provided a mechanism which prevents excessive hardship to those struck by freezing orders, added the public prosecutor.

Mr Justice Joseph Zammit McKeon said that after deliberating on the matter for a long time, he found a violation of the right to a fair hearing.

“It is most clear and manifest that the reasons for the delay were due to shortcomings by the defendant (AG) and the way in which the prosecution of the applicants is being conducted. It does not emerge that the delays were due to the actions of the plaintiffs. Neither of the court.”

The prosecution had started well and with great momentum, but as the months and years passed it started to fall behind in what would be expected in such a sensitive case, Zammit McKeon said.

“The principle should be that the rule of law is the same for everyone.”

The court went further, however, singling out the fact that the letters rogatory had taken an inexplicable 11 months to be sent and arguing that the police were legally obliged to know the evidence against the accused before prosecuting. The fact that the prosecuting police inspector was changed twice during the proceedings was not acceptable in view of the facts and circumstances of the case.

“If there was a need for evidence of the glaring and gross shortcoming by the prosecution, there is the reply by Inspector Stivala, when asked whether new letters rogatory had been sent in the case against Frank Sammut,” said the court. The witness had replied that they weren’t yet sent as there were acts that still had to be scrutinised and that only one person was involved.

The point of freezing orders was not to oppress the wealth of the accused but to ensure that until the case is decided there is no illicit gain, said the court, ordering the case to continue before the Court of Magistrates but not to revoke the freezing orders. It also ordered the AG to close his evidence in this case by not later than 31 December this year.

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