Joseph Muscat loses human rights case linked to hospitals inquiry

Updated: 3.57pm with reasoning and reaction

A court has rejected a human rights claim filed by former prime minister Joseph Muscat over the way he was drawn into the magisterial inquiry into the controversial hospitals deal.

Muscat brought the case after being named during an inquiry into the privatisation of three state hospitals, a deal initially made with Vitals Global Healthcare and later taken over by Steward Health Care.

He said he would appeal the judgment. 

He was later charged with serious crimes including bribery, trading in influence, money laundering and involvement in a criminal association over the deal to privatise Karin Grech, St Luke's and Gozo general. 

The inquiry, led by Magistrate Gabriella Vella, stemmed from a criminal complaint by rule-of-law NGO Repubblika, which in 2019 asked the courts to investigate alleged criminal activity in the hospitals’ concession.

At the time, the NGO named four individuals - Ivan Vassallo, former finance minister Edward Scicluna, former minister Konrad Mizzi, and former minister Chris Cardona - but not Muscat. In his legal argument, Muscat pointed out that private citizens initiating a magisterial inquiry must specify the individuals to be investigated.

Muscat’s name emerged later in the inquiry, particularly after a Times of Malta report on November 7, 2021, which revealed that he had received tens of thousands of euros in consultancy fees from a Swiss firm linked to the hospitals deal. The company had received millions from Steward Health Care after it took over the concession from VGH. 

Repubblika subsequently filed a formal criminal complaint to the Police Commissioner, who passed the matter to the inquiring magistrate already handling the hospitals case.

What did Muscat claim?

Muscat claimed this step breached his rights, arguing he should have been given an opportunity to be heard before the complaint was added to an existing magisterial inquiry.

He challenged the magistrate’s decision to include the complaint without informing him or allowing him to respond and also complained about the magistrate’s refusal to recuse herself from the case.

Muscat had previously filed constitutional proceedings on the matter but withdrew them before launching this case.

The background to the inquiry included two applications by Repubblika. The first request was upheld by Magistrate Claire Stafrace Zammit which was overturned when all but Vassallo requested a review by the Criminal Court, who at the time was presided by Mr Justice Giovanni Grixti. 

A second application was upheld by the magistrate, with a request for a review dismissed by the Criminal Court. 

Since Vassallo did not contest, an inquiry into the hospitals’ deal had already started and was assigned to inquiring Magistrate Gabriella Vella.

When the second request was upheld, it was also ruled that this investigation would be part of the already initiated inquiry into Vassallo.

Repubblika's later criminal complaint to the Police Commissioner was sent to magistrate Vella, who was already leading the inquiry into the hospitals’ deal. 

Why did the court throw the case out?

In dismissing Muscat's claims, the court observed that the criminal complaint was sent to the Police Commissioner, and on the inquiring magistrate’s instructions, magistrate Vella was informed. 

The court held that there was no need to serve Muscat and grant him the right to be heard. It reasoned that if the Police Commissioner had requested an inquiry, the suspect would not have been informed, and therefore one cannot expect that the procedure to be followed when a private person requests an inquiry should be applied to situations when it is the police that informs the magistrate. 

The court delved into the difference in what happens when a criminal complaint is filed with the police and when an application is filed before a magistrate.

The court observed that the inquiring magistrate’s decision to confine the information to one inquiry was reasonable and proportional in order not to initiate another inquiry on the same merits, and that there is a vacuum in the law.

Similarly, it was not required of the inquiring magistrate to serve the plaintiff since this is not requested by law and can give rise to obstruction. This does not mean that it could not lead to a breach.

The court, quoting case law, distinguished between the two criminal complaints, and said the plaintiff was wrong in arguing that the inquiring magistrate had a duty to send the criminal complaint to another magistrate as chosen by lot.

It also held that an issue of a breach of one’s right to fair hearing is assessed on the overall fairness of the proceedings.

At the stage of the inquiry, there is no judgement but a research to establish whether there is a cause to answer, there is no charge at that stage and neither is a person investigated.

The court also noted Muscat's complaints that his requests to testify were ignored and that disclosure only happened after he had filed the constitutional case.  But the court said in an inquiry the inquiring magistrate is exclusively leading the gathering and preservation of evidence.

“Unlike proceedings in open court, no person has the right to ask to be heard or to be given copies of documents in the records of the inquiry,” Mr Justice Giovanni Grixti said.

“And therefore, the plaintiff should not have understood this as a prejudice against him when his requests remained unanswered,” the court said.

Mr Justice Giovanni Grixti ruled that there was nothing which objectively shows that the inquiring magistrate was partial in her decision, rejecting the claim that the plaintiff’s rights had been breached.

After dismissing all of Muscat’s requests, the court ordered him to bear all legal costs.

What has the reaction been?

In a short post on Facebook, Muscat said he respected the judgment but would be appealing it. 

"I look forward to continuing to show the perverse way in which vindictive maneuvers were carried out against me and my family," he said. 

In a statement, Repubblika welcomed the judgment.

"This means that what has been said for years, that this was 'persecution' or a 'political inquiry', has now been rejected by the Court," it said. 

It accused Muscat of coordinating "a campaign of character assassination" against the magistrate who led the inquiry and said Prime Minister Robert Abela had intervened "repeatedly to discredit the process". 

"Today the Court confirmed that these attacks had no factual or legal basis," it said. 

"In a democracy, the most important test of the rule of law comes when the law must apply to those who are politically most powerful," it said. "Institutions must be free to investigate, reach conclusions and, where appropriate, convict, without intimidation, campaigns of delegitimisation, or pressure from those who hold power".

It also highlighted how a recent change to the law removed the right for citizens to request a magisterial inquiry and that the NGO was also "challenging this abuse" in court. 

Mr Justice Giovanni Grixti presided over the First Hall of the Civil Court.Lawyers Vince Galea and Charlon Gouder assisted Muscat.Lawyers James D’Agostino and Isaac Zammit appeared on behalf of the State Advocate.