Lawyers representing defendants in the Vitals case took turns on Friday to voice their frustration at the “ultra-rigid” way courts are interpreting freezing order laws.
Those laws were amended by parliament just a few months ago, but defendants in the Vitals case argue that they are nevertheless unfairly balanced against them.
In legal submissions which began on Friday morning and stretched into the afternoon, defence lawyers argued that defendants should be given more time to contest freezing orders and the opportunity to challenge those requesting the orders to substantiate their requests.
“Our courts are totally pulling down the shutter,” said lawyer Edward Gatt, setting the tone to lengthy submissions during the first and last session in a constitutional reference upheld last week by the Criminal Court presided over by Madam Justice Edwina Grima.
Gatt, who is representing defendants Keith Schembri and Konrad Mizzi, was one of several defence lawyers to speak during the hearing.
Defendants are all facing criminal charges in over their alleged involvement in the Vitals hospitals concession, now annulled on the basis of fraud. Prosecutors in that case requested freezing orders against each defendant, with amounts at times reaching into the tens of millions of euros.
The accused say the law allows prosecutors to make such requests without justifying them. And while the Proceeds of Crime Act gives defendants up to seven days to contest such orders, the prosecution has no time limits on its right to contest or seek to vary freezing orders.
Faced with that argument, Madam Justice Grima deemed it “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.
The matter landed before the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Mark Simiana.
Defence lawyers argued that the seven-day limit to object to freezing orders was far too short, given the complexity of such criminal cases, and insisted on being given the right to question court experts whose conclusions formed the basis of prosecutors’ arraignments and freezing order requests.
Gatt said the law in its current form breached an EU directive on confiscating proceeds of crime, as it does not give defendants an “effective possibility” to contest such orders.
Stephen Tonna Lowell argued that his clients, Nexia BT’s Karl Cini and Brian Tonna, had been slapped with a €20 million freezing order for work which earned them just €12,000 in professional fees.
Vincent Galea, representing Joseph Muscat, said court experts had called for freezing orders reaching a combined total of €551 million against all defendants in the case. If that sum proved to be far off the mark, would a “sorry” from them suffice, he asked.
Chris Cilia argued that his client, MTrace Ltd, was also targeted with a €20 million freezing order despite that being “nowhere near” what was spent on the Cyclotron project.
Shazoo Ghaznavi insisted that those requesting freezing orders should be made to justify their requests.
Gianella de Marco and Arthur Azzopardi also argued that the law in its current form was ambiguous and disproportionate.
Lawyers from the Office of the State Advocate countered by arguing that it was in the defendants’ interest to have short time limits and speed up criminal proceedings and that there was nothing unusual in the prosecution and defence having different rights.
Judge Simiana deferred the case for judgment later this month.