A police sergeant facing criminal action for receiving undue overtime payments has accused the authorities of discrimination for their failure to prosecute all those who were involved in the racket.

Alexander Schembri, who was president of the Malta Police Union until he was taken to court, has mounted a constitutional challenge against his boss, Police Commissioner Angelo Gafà, and the State Advocate, claiming a breach of his human rights.

In an application filed in the First Hall of the Civil Court in its constitutional jurisdiction, Schembri claimed blatant discrimination after it emerged that police officers mentioned during his criminal case did not face prosecution.

Instead, they were given the opportunity to regularise their position without facing criminal action – something he was not offered.

Schembri, 56, from Xgħajra, is one of several police officers pleading not guilty to charges of fraud of amounts not higher than €5,000 and of committing an offence they were duty bound to prevent.

Times of Malta first revealed in February 2020 that dozens of police - particularly in the traffic section - were to be investigated for overtime abuse. It involved officers claiming overtime for jobs they never reported for or carried out.

He also stands charged with misuse of government funds, complicity in fraud, knowingly making a false declaration to a public authority and creating or using a false record.

23 officers involved

The investigation was triggered by an anonymous letter sent in 2019 to Gafà at the time when was police CEO.

The ensuing investigation identified nine officers whose duties overlapped their rostered hours. No fewer than 23 officers had been paid thousands more for extra duties they were not due, the court heard.

The internal investigation focused on the Valletta police station, where Schembri was stationed at the time.

Besides their shift and overtime hours, police officers can also be assigned extra duties during their time off, such as for the provision of security to events like weddings. They can also be assigned revenue-related duties, such as guarding cash vans as they are unloaded at banks.

The payment for extra duties goes to the officer directly while payment for revenue duties is made to the corps. Extra duty needs to be at least three hours long, so if a citizen asks for a job that only takes 15 minutes the officer will still be paid for three hours.

In his constitutional application, Schembri argued that while not every inequality of treatment amounted to discrimination, the different treatment he was afforded in relation to colleagues in the same circumstances was not legitimate, objective or reasonable.

He was the victim of discrimination because other colleagues identified in the internal auditor’s report for the same alleged irregularities were given different treatment.

He said several other officers were offered the opportunity to pay the extra amounts they had received, with a declaration that this would avoid criminal action being taken against them.

With his court application, Schembri filed a letter sent to another officer by the police legal department informing him that an internal investigation had found discrepancies and irregularities in the payment process for extra duties performed.

Pay to avoid legal action

The letter read: “Considering the above, the Commissioner is kindly requesting that you reimburse the Malta Police Force the sum of ... pertaining to the compensation for ... hours of overlapping shift hours.

“It is expected that the reimbursement is to be made in a prompt manner to ensure a fair resolution of this matter. Please note that failure to comply with this request may result in further legal action being pursued to seek the appropriate remedy,” the legal office wrote.

The letter continued: “Should the payment be promptly made in full, we assure you that no further judicial action will be taken against you or any other involved parties. The Malta Police Force believes that resolving this matter amicably and in a timely manner is in the best interest of all parties involved. By settling this matter, we can avoid any unnecessary complications and expenses that may arise from a protracted legal process.”

Schembri argued that not only was he not offered the opportunity to reimburse the alleged amount of extra overtime but was also suspended on half pay and faced criminal proceedings. Despite not being given such an opportunity, he still paid back the extra amounts through his lawyers.

Police 'pick and choose' who to charge

The sergeant said the circumstances clearly showed the different treatment he was afforded when compared to some of his colleagues who were in the same situation. This amounted to discriminatory treatment in violation of the Constitution.

Such discrimination was created when the police force elected to pick and choose whom to arraign in court and whom to allow to settle the matter outside court.

Schembri called on the court to declare that he had been subjected to discriminatory treatment, order a remedy and declare the criminal proceedings against him null and void.

Lawyers David Bonello and Joe Giglio signed the application.