The Chief Justice and two judges presiding over a constitutional appeal by Keith Schembri and other high-profile defendants challenging the current legal regime on freezing orders were faced with a request for recusal.
The case revolves around a challenge fronted by the former OPM chief of staff and former minister Konrad Mizzi who requested a constitutional reference during criminal proceedings where they stand accused, alongside former prime minister Joseph Muscat and other top public figures, over their alleged involvement in the fraudulent Vitals deal.
All defendants were targeted by millions worth of freezing orders, with only seven working days to contest such seize and freeze orders before the criminal courts.
Schembri and Mizzi’s lawyers, subsequently joined by the other defendants’ counsels, argued that the current laws resulted in a situation of inequality of arms since the prosecution had an unlimited term to request a variation to such freezing orders.
In July, the First Hall, Civil Court in its constitutional jurisdiction dismissed the applicants’ claims.
Mr Justice Mark Simiana concluded that any review of freezing orders “fell entirely within the discretion of the Criminal Court.”
The applicants filed an appeal before the Constitutional Court and the case was appointed for a first hearing on Tuesday, for oral submissions on preliminary pleas.
Prior to today’s sitting, the appellants requested the court to authorize the presentation of the acts of the parallel criminal case against Pakistani businessman Shaukat Ali Chaudhry and his wife Shaukat Aasia Parveen.
However, the court turned down that request, stating that the end result of these appeal proceedings concerning Schembri and the other co-defendants did not depend on other criminal proceedings to which the appellants were not parties.
When the case was called today, lawyer Edward Gatt, assisting Schembri and Mizzi, informed Mr Justice Mark Chetcuti together with Justices Giannino Caruana Demajo and Anthony Ellul, that all the appellants’ lawyers were requesting the recusal of the judges.
The main reason was that the three judges presiding over the Constitutional Court today were the same judges who handed down the final judgment that definitively annulled the hospitals concession.
And that judgment had gone a step further than the decision by Mr Justice Francesco Depasquale who delivered the first decision annulling the concession on the grounds of fraud.
The Constitutional Court subsequently confirmed the annulment, declaring that there was collusion between the concessionaire and high-ranking government officials.
That decision meant that the judges had already expressed an opinion about the parties who were now facing criminal charges over their alleged involvement in the annulled deal.
Faced with that argument, the court ordered the appellants to file this recusal request in writing within four days, notifying the Attorney General and State Advocate’s lawyers who would also have four days to reply.
The court will decide upon the issue later this month.
Lawyers Edward Gatt, Mark Vassallo and Shaun Zammit assisted Schembri and Mizzi.
Lawyers Julian Farrugia, Miguel Degabriele and Francesco Refalo represented the State Advocate and AG.