A delayed magisterial investigation into alleged crimes in the privatisation of three State hospitals has been described as a “fudge” by senior justice experts.

The experts, who spoke on condition of anonymity due to the sensitivity of their roles, were talking about the magisterial inquiry targeting three ministers as well as Ivan Vassallo, owner of Technoline. The company was the main supplier of equipment and other supplies to the hospitals after it was taken over by the now-defunct Vitals Global Healthcare.

The criminal inquiry was ordered by Magistrate Claire Zammit Stafrace on July 17 on the basis that suspicious dealings detailed in 153-page report by the NGO Repubblika “indicates” that criminal offences might have occurred and, since the material evidence still exists, the prerequisites for holding an inquiry had been met.

The three ministers – Chris Cardona, Konrad Mizzi, and Edward Scicluna – appealed the decision two days later. But six weeks on, the presiding judge, Giovanni Grixti, has not resolved the appeal nor given any indication whether he will hold any hearings or move directly to judgment.

The justice sources who spoke to The Sunday Times of Malta expressed perplexity at the lapse of six weeks in view of the proviso in law that appeals have to be decided “with urgency”.

Although urgency remains undefined in the law, it arises from the stipulation in the same clause that appeals have to be filed “within two working days” and the “Criminal Court shall give its decision on the application with urgency”.

The law itself envisaged that magisterial inquiries would be concluded within two months. In this case the potential inquiry has been caught up in court arguments for 16 weeks, including the six weeks snagged in the appeal in Mr Justice Grixti’s court. 

The sources maintained that “time is of the essence in criminal investigations”: the preservation of evidence, as magisterial inquiries are supposed to achieve, requires immediacy and, if possible, an element of surprise.

Repubblika had attempted to kickstart the inquiry by requesting the court to hold it into one of the four suspects – Mr Vassallo of Technoline – who had not appealed from the magistrate’s decree. This prompted the Registrar of the Criminal Court to seek formal “authorisation” from Mr Justice Grixti to make a copy of the documents on file to be passed on to the magistrate that would be selected to hold the inquiry. 

Time is of the essence in criminal investigations

In a five-page decree on August 7, Mr Justice Grixti agreed with the three ministers that the inquiry “accorded” is an indivisible endeavour, and that allowing the suspect who hadn’t appealed to be investigated “would render their appeal futile.”

He added that the “proposal” to start the investigation would anyway be “a mistake” at a time when the case and documents were being assessed “in their entirety” in the appeal in his court.

The justice experts were scathing about what they characterised as the court’s descent into legalistic argumentation about form and procedure instead of being focused on securing any evidence or depositions which might otherwise be destroyed or adulterated.

They added that these court sagas add credence to the damning resolution of the Council of Europe’s Parliamentary Assembly, which held on June 26 that these magisterial inquiries “take an inordinately long time, and tend towards confusion, inefficiency and ineffectiveness.”

The law’s evolution towards ‘ineffectiveness’ 

Legal amendments of August 2006 introduced the possibility of a magisterial inquiry being launched by any individual making a report of a crime to a magistrate. Then Justice Minister Tonio Borg was concerned about the possibility of magistrates launching investigations abusively or recklessly.

The law until then had only empowered the police or Attorney General to make reports that could trigger inquiries. In extending that possibility to everyone else, the fear was that this power could be abused to target enemies, or that people could abusively find themselves under investigation by a magistrate without their knowledge.

Dr Borg devised a safety-catch: the Chief Justice would have to review and assent to the magistrate’s decision to investigate before an investigation could commence.

The then Labour opposition opposed this measure because it signified lack of trust in magistrates. They also argued at committee stage in Parliament that it would give the Chief Justice the power of veto, with the potential of vetoing investigations abusively.

Dr Borg had explained that his intention was to make decisions less liable to error or abuse by having two members of the judiciary scrutinise reports, and that he was open to finding a “middle way.” That’s when talk of allowing the suspect to appeal emerged, which became enshrined into law. 

The appeal tactic has been employed in recent years in high-profile cases, most famously the call by then Opposition leader Simon Busuttil for an inquiry arising from Panama Papers leak involving individuals at the heart of power. That request got caught up in appeals for more than a year before being dismissed by Mr Justice Grixti.

That case brought into sharper relief the consensus among legal experts that the law on inquiries is in need of reform.

The point of inquiries is to preserve evidence of a crime in a form that would be admissible in eventual criminal prosecution, including deposition of witnesses under oath. One of the law’s main flaws is that material evidence – termed as “subject-matter” in the law – has to be identified and to exist prior to investigation. This narrows the scope of investigations, even though the line between “preservation” and “investigation” has blurred along the years.

Talking about these limitations, legal scholar Kevin Aquilina had told The Sunday Times of Malta that “it is better to have no remedy at law than a travesty of justice. The course of justice is therefore perverted when the law allows a remedy to the citizen [having the possibility to report crimes to magistrates] which, as a matter of fact, is no remedy at all.”

Another flaw is the proviso allowing the suspects to appeal, which can thwart or stall an inquiry and give suspects a chance to adulterate or destroy evidence, as well as rehearse cover-up stories. 

This point was raised in a paper by Chief Justice Emeritus Vincent De Gaetano, judge at the European Court of Human Rights, which was recently published in the legal journal Id-Dritt.

Mr Justice De Gaetano wrote that in cases where reports of crime are not generated by the police or the Attorney General, “Malta must be the only country in the civilised world” in which the magistrate receiving the report “must” in the first instance “inform the suspect of the report, information or complaint against him and allow him time to give his views on whether an inquiry is to be held. This is beyond bizarre”.

He also lamented that magistrates holding inquiries are “functionally dependent” on the police and have no time (given their workload), no “independent resources” and no specialised training “for complicated or complex investigations.”

In mainland European countries, magistrates are empowered to initiate independent investigations and they are afforded the resources to run investigations entirely out of their office.

The Council of Europe’s Venice Commission was also critical of the way magisterial inquiries can be influenced by actors who have an interest in the outcome, asserting that “investigation of a crime is a task of the State.” It then recommended the setting up of a state prosecutor that would “absorb the function” of inquiries. 

Speaking in Parliament during the passage of the law defining separate roles for the Attorney General and the new State Advocate last June, Justice Minister Owen Bonnici asserted that the present system of magisterial inquiries works, before adding that more study was needed before considering any reforms. 

The Vitals hospital deal

 In 2015, a company called Vitals Global Healthcare was chosen to run three of Malta’s State hospitals in a 30-year concession. VGH had no experience whatsoever in the provision of healthcare and despite its complex structure of ownership obscured by layers of companies in secretive offshore jurisdictions.

Repubblika’s court application claims that to this day 30 per cent of VGH’s owners remain hidden.

The magnitude of the largesse was eventually revealed: VGH would receive €2.1 billion in payments for healthcare services over 30 years, as well as €1.2 million yearly for a medical school and €1 million for an air ambulance service between the islands. The government would also continue to pay the salaries of hospital employees. The concession was eventually extended to 99 years.

It later emerged that an MoU had been signed between the government and VGH months before the formal Request for Proposals was issued.

Repubblika claims that the three-month window for proposals was designed to ensure that other companies would not have sufficient time to prepare such a large bid.

VGH eventually traded its concession to Steward Global Healthcare but it is not clear whether its involvement has ended.

Stalled inquiries

Although the law envisages that inquiries take 60 days to complete, information given in Parliament last year showed that most inquiries take longer than that. Hundreds of inquiries are ongoing at any one time, some of them dragging on for many years – a few have been active for decades.

A proviso in law states that any magistrate who does not conclude an inquiry in 60 days would have to write to the Attorney General at 30 days’ interval thereafter to give justification for the delay.

The Attorney General admitted with The Sunday Times of Malta that magistrates do not report to him after the lapse of 60 days, or at any time afterwards.