Former OPM chief of staff Keith Schembri has filed a constitutional case claiming breaches of his fundamental human rights in connection with the magisterial inquiry into claims of graft and underhand dealings between him and former Allied Group managing director Adrian Hillman.
The case was filed by Schembri and his employees Alfio Schembri, Malcolm Scerri and Robert Zammit against the State Attorney, the Attorney General, the police commissioner, the Criminal Courts’ registrar and the Justice Minister.
The case was filed after the inquiring magistrate, Josette Demicoli, reportedly recommended that criminal charges be filed against the pair. The conclusions of the inquiry have remained under wraps and are understood to have been given only to the involved parties.
The allegations of financial crime surrounding the two were first reported by journalist Daphne Caruana Galizia in 2016.
Former opposition leader Simon Busuttil had then requested the inquiry, based on information found in a leaked intelligence report, following fears that the police at the time were deliberately not proceeding with the case.
The leaked Financial Intelligence Analysis Unit report had detailed how Schembri allegedly filtered over €650,000 to Hillman in over 30 “suspicious transactions” between 2011 and 2015. Hillman was at the time at the helm of the company which publishes Times of Malta, among other publications.
Hillman was also found to have deposited €225,000 in cash into his HSBC account between January 2011 and February 2016.
In May 2017, Busuttil presented then magistrate, now judge, Aaron Bugeja with eight box files of documents which, he said, contained detailed proof of €650,000 in transactions from Schembri to Hillman.
Bugeja had decreed that there was sufficient evidence for the files to be considered further by an ad hoc magisterial inquiry, which was entrusted to Magistrate Demicoli.
The opposition described the matter as a clear case of bribery and money laundering linked to a major investment undertaken by Allied Group to purchase a new printing press in Mrieħel. Hillman went on garden leave and the company severed all ties with him shortly afterwards as it insisted it had "no knowledge" of any payments.
In his constitutional application filed with urgency on Thursday, Schembri and his employees claimed several breaches to their fundamental rights, particularly article six over their right to a fair trial.
They complained about the three years, 10 months it took to conclude the inquiry. They quoted provisions of the law which obliges the magistrate to give the Attorney General an explanation on why the inquiry took longer than the stipulated 60 days to conclude. They said the did not know if this explanation was given and what was the justification for such a delay.
They said that while the inquiry was under way, there were leaks in certain sections of the media, including The Shift and Times of Malta on the conclusions of the probe, even before they were informed about them. They had asked the magistrate to order a police investigation into these leaks but were not aware whether the magistrate decreed on their request.
In another complaint, Schembri and his employees said the expert appointed by the inquiring magistrate to assist her with the probe, Miroslava Milenovic, had drawn wrong conclusions and that she was not competent to give opinions on her findings. They said Milenovic was vice-president of a Serbian political party called Enough is Enough which was focusing on corruption in Serbia.
Schembri and his employees also complained that the inquiring magistrate was not impartial in her assignment and had gone beyond the scope of an in genere inquiry which was there to preserve and determine the truth and should not have been used to turn into an inquisitive exercise without respect for the presumption of innocence.
They said Scerri and Zammit had not even been called to testify during this inquiry and Schembri could not testify before being given disclosure about the findings of the technical expert. This was precisely why the police, faced with a situation where the court only heard who it deemed fit, had to start their investigation to fill the lacunae left by the inquiring court. They said they suffered prejudice as a result of these mistakes.
Perhaps, worse than this, they found out during the interrogation by the police that the inquiring magistrate had ordered that criminal proceedings be instituted against the management of Progress Press for allegedly overinflating costs to be granted more money than it should from Malta Enterprise.
The respondents were not given disclosure about what had been said by Progress Press executives for the simple reason that these executives, at least on these accusations, had not been questioned.
They said they are “very sceptical” about this recommendation for criminal proceedings as they are not aware of irregularities found by the inquiring magistrate and this put them at a great disadvantage for their defence.
“These are just a few examples of a long number of errors made in the course of this inquiry and which show that this inquiry is detrimental to the fundamental right to have a proper hearing,” they said in their application.
Lastly, they complained about a legal technicality whereby they have no legal means to take the matter to a superior court because the law precluded them from doing so.
“This means that if, as happened in this case, defects, errors or even abuses result (from the conclusions of the inquiry), the person under investigation may not request a court of a higher criminal judiciary to review it,” they said.
They, therefore, called on the constitutional court to hear the case with urgency and decide on the matters raised as well as order measures to ensure that their fundamental right is respected.
Lawyers Edward Gatt and Mark Vassallo signed the application.