Updated 2.05pm with Repubblika statement

A court has dismissed claims by NGO Repubblika that its fundamental rights were breached by having Magistrate Nadine Lia hear one of its cases. 

The decision – the last stage in a drawn-court court saga - means Magistrate Lia will continue to hear the case that the NGO filed, seeking to have former Pilatus Bank official criminally prosecuted.

While the NGO was “defending the general interest” by filing the legal action, it could not claim that its rights were breached by having Lia preside over it, the court concluded. 

Repubblika responded by saying it would be escalating the case to the European Court of Human Rights in Strasbourg. 

The court was ruling on an appeal filed by Repubblika against a decision delivered by the First Hall, Civil Court in its constitutional jurisdiction in January, stating that the NGO had no juridical interest and no victim status in the matter. 

Repubblika began the case after learning that police had not acted on a magistrate’s recommendation to prosecute former Pilatus Bank officials. The magistrate was investigating alleged financial crimes at the now-shuttered bank. 

The case was assigned to Magistrate Lia, prompting Repubblika to request her recusal on the basis of her family ties to lawyer Pawlu Lia.

Repubblika president Robert Aquilina speaking outside the law courts in April. Photo: Jonathan Borg

Pawlu Lia, the magistrate’s father-in-law, was the lawyer of former Prime Minister Joseph Muscat and his chief-of-staff Keith Schembri. He was also the lawyer who drafted the terms of reference for the Egrant inquiry, which prominently featured Pilatus Bank. 

The Egrant inquiry was kickstarted by Muscat. 

When delivering judgment on Wednesday, the Constitutional Court confirmed the first court’s decision, which had concluded that Repubblika’s  right to a fair hearing was not at stake because the group was neither facing criminal charges nor were its civil rights to be determined. 

The court made reference to a similar case scenario concerning a request for recusal put forward by former Opposition Leader Simon Busuttil. 

That case was decided in October 2018 and the reasoning laid down in that judgment equally applied to Repubblika’s case, observed the court. 

Repubblika’s case was not one where, for instance, a person suffered material damages through some third party action and wanted police to take criminal action against that third party so as to obtain compensation. 

The NGO’s civil rights were not being determined through those challenge proceedings. 

“Repubblika did not identify any civil right to be determined by the Magistrates’ Court,” said the judges. 

Without repeating the line of European Court of Human Rights cases cited by the first court, the judges observed that the challenge had nothing to do with Repubblika’s pecuniary or non-pecuniary rights.

“Repubblika was defending the general interest but that was not the civil right envisaged under article 39 of the Constitution and article 6(1) of the European Convention on Human Rights,” namely the right to a fair hearing. 

Therefore Repubblika could not complain that its fundamental rights had been breached or were likely to be breached and consequently it had no interest to pursue this case further, said the court. 

“On the other hand, in every process before the courts, the principles of natural justice should be observed,” was the judges’ conclusive comment.

Repubblika to take case to Strasbourg

In a statement, Repubblika said it was disappointed by the decision and would be taking the matter to the ECHR. 

"The courts acknowledge that if you are charged by the police commissioner, you have the right to appear before an impartial court. But if you ask the court to order the commissioner to press charges against someone, in that case you have no right to expect the court to be an impartial one," the NGO said. 

"Magistrate Nadine Lia cannot be impartial in this case concerning Pilatus Bank," the NGO said. "Courts that do not guarantee impartiality are not courts."