A constitutional court has turned down a challenge to the current law on freezing orders which defendants in the first Vitals case say created inequality of arms between the prosecution and the defence.
The challenge was fronted by Keith Schembri and Konrad Mizzi who requested a constitutional reference in the ongoing compilation of evidence over their alleged involvement in the fraudulent Vitals concession.
The request was made to the Criminal Court presided over by Madam Justice Edwina Grima who, last month, upheld it and ordered that the issue be referred to the First Hall, Civil Court in its constitutional jurisdiction.
The issue pivoted upon the freezing orders of several million euros which the prosecution sought and obtained at the start of the criminal proceedings before the Magistrates’ Court in the Vitals hospitals case.
Schembri and Mizzi subsequently filed an application seeking to revoke or vary that seize and freeze order. They flagged a constitutional issue concerning the current legal regime, arguing that there was a lack of equality of arms since the defence had only seven working days to contest the court’s decision about the freezing order, whereas the prosecution’s term was unlimited.
Although article 36(8)(ii) of the Proceeds of Crime Act was amended earlier this year to reduce the draconian law on freezing orders, the applicable regime still gave rise to a situation of inequality of arms between the prosecution and the defence, they argued.
Moreover, the Criminal Court itself was also bound by that seven-day time limit when assessing and deciding upon such contestation. Such unequal treatment resulted in a breach of the defendant’s right to a fair hearing as well as his fundamental right to the peaceful enjoyment of his property, argued the defendants’ lawyers.
Madam Justice Grima deemed that argument “not frivolous nor vexatious” and referred the matter to the constitutional court, observing that seven working days were too short, especially when faced with such a voluminous inquiry as the Vitals case and the substantial amounts alleged to be proceeds of crime.
The matter landed before Mr Justice Mark Simiana who, during a marathon sitting earlier this month, heard submissions by all defendants’ lawyers who backed the challenge originally fronted by Schembri and Mizzi. The case was put off to Thursday for judgment.
Mr Justice Simiana said such court orders have a legitimate purpose to serve the public and general interest by preserving assets whose source is dubious. Freezing orders serve as a prelude to the harsher measure of confiscation which is also legitimate since it is meant to deprive wrongdoers of the profits and proceeds derived from crime.
“The fight against criminality which causes economic distortion and is to have a deterrent effect, undoubtedly necessitates that those who breach the law are not allowed to enjoy the fruit of their wrongful acts,” he said.
However, such orders must also be proportionate so that the subject is not unduly deprived of his assets.
The seven working day limit complained of by the applicants was in truth not long but nor could it be considered as too short. As long as those hit by such an order were immediately told the reasons for such court seize and freeze, seven working days to contest it were not too short.
In this case, the magistrate who imposed the freezing orders had minuted the court’s reasoning in the court records at that same hearing and thus, the reasoning was immediately available to the defendants.
And the only yardstick to apply when considering the prosecution’s request for a freezing order was whether there existed “a valid reason to believe that the property could be subject to confiscation.”
As for the argument that seven days were too short to assess the evidence which, particularly in the Vitals case, was voluminous, the judge observed that the matter to contest was a point of law. And that did not involve examining the contents of the magisterial inquiry.
Seven working days to contest such a point of law could not be deemed as insufficient, said the judge, adding that this was not the only case where the legislator laid down brief and mandatory time limits. This was justifiable in case of issues calling for a speedy decision to safeguard individual or national interests.
Besides, the constitutional court had to refrain from saying what the applicable time limit ought to be in such circumstances since that was the legislator’s prerogative. The Criminal Court was the forum where the decision by the Magistrate’s Court issuing the freezing order was to be reviewed. If the Criminal Court were to decide that the court presiding over the compilation of evidence had made a wrong decision such as, for instance, by failing to hear witnesses, then the Criminal Court is to revoke the freezing order and send the case back to the Magistrates’ Court for a fresh decision. Such a matter fell “entirely within the discretion of the Criminal Court and this [constitutional ] court must not interfere,” said Mr Justice Simiana.
When all was considered the court concluded that the defendants suffered no breach of fundamental rights in the criminal proceedings.
The applicants are expected to appeal.