A court decision declaring as inadmissible Ivan Grech Mintoff’s testimony in a case filed against a whistleblower in an alleged racket over medical visas, has been successfully challenged before the constitutional courts.
Syrian-born Khaled Ibrahim Ben Nasan is pleading not guilty to attempted fraud, simulation of a crime and filing a false police report against former Health Ministry official Neville Gafá.
He had requested a constitutional reference after Grech Mintoff’s testimony was cut short and subsequently declared inadmissible.
The issue dates back to February 2019, when the politician and host of TV discussion show Exodus was summoned as a defence witness in the case.
Ben Nasan is being prosecuted over allegations that he had handed over some €38,000 to Gafá to issue medical visas, which never materialised.
However, Grech Mintoff had hardly touched upon the merits of the case when the court questioned the admissibility of his testimony, observing that it appeared to be based on hearsay evidence.
That testimony was suspended and was never resumed, despite Ben Nasan’s lawyer filing a formal note explaining its importance in proving his client's allegations concerning Gafá.
Grech Mintoff himself had allegedly faced bribes and threats in an attempt to stop him from airing that particular edition of his TV show featuring the alleged visas, details of which he had obtained from Ben Nasan, the court was told.
Yet the magistrates’ court decided that Grech Mintoff’s testimony was “not relevant” to the charges faced by the accused.
Whether that decision effectively breached or could possibly breach the accused’s fundamental right to a fair hearing was a matter to be scrutinised by the constitutional courts following a request for a reference to that effect by Ben Nasan’s lawyer, Leslie Cuschieri.
In January 2019, the first hall, civil court in its constitutional jurisdiction declared that Grech Mintoff could not be declared an “inadmissible” witness when he had not even touched upon the central issue in the proceedings.
Allowing such a decision at such an early stage of his deposition was not acceptable, said the court, pointing out that relevance of the evidence was to be ascertained throughout the witness’s deposition.
The attorney general appealed that judgment, thus taking the issue before the constitutional court.
In a recent judgment that court, presided over by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul, confirmed the decision of the first hall, civil court and ordered the decision to be filed in the records of the criminal proceedings still pending before the magistrates’ court.
Although at this stage it was not possible to assess what impact such an omission of Grech Mintoff’s testimony could have upon “the overall fairness” of the criminal proceedings, a party could put forward a human rights claim if he deems his rights to have been, are being or are likely to be breached.
In this case, Grech Mintoff had not gone beyond the point of saying that as TV show host, he had met Ben Nasan who supplied details about the alleged medical visas racket.
There was no evidence that Grech Mintoff was not a competent witness in the case, said the court, observing that the magistrates’ court had reached its decision before the witness had testified on the merits.
That court had concluded that Grech Mintoff’s testimony was based on hearsay evidence.
“A decision should not have been taken as though everything that Grech Mintoff had to say was hearsay evidence,” said the court, noting further that there were particular circumstances when the law itself allowed such evidence based on information obtained from third parties.
Such circumstances did not appear to have been taken into consideration by the magistrates’ court in Ben Nasan’s case where the main witnesses for the defence lived in Libya.
It was evident that the whistleblower wanted to produce evidence to show that his version to the police was truthful and that he had handed over thousands of euro to Gafá for Libyan nationals to receive medical treatment in Malta, but that no visas were issued to that effect, said the court.
The attorney general's appeal was thus rejected and the court registrar ordered to insert a copy of the judgment in the records of the criminal case pending before the magistrates’ courts.