Malta’s law on freezing orders goes against EU rules as it does not allow for appeals, a constitutional court has concluded in a case filed by a man whose assets have remained frozen for 13 years. 

In an important judgement, the court ruled that Bastjan Dalli had his fundamental rights breached by the attorney general’s “deplorable” handling of the case, coupled with his inability to contest the original freezing order decision.

Dalli, who is the brother of retired politician John Dalli, was charged with drug trafficking in 2009 and was subject to a court-ordered freezing order that year, as part of those criminal proceedings. 

That order was meant to be a temporary measure, but 13 years later it remains in force as the case against him has yet to be concluded. 

Dalli took his grievance before the constitutional courts and was awarded almost €28,000 in damages earlier this year after the First Hall, Civil Court in its constitutional jurisdiction declared that his rights to peaceful enjoyment of property as well as his right to a fair hearing had been breached. 

The State appealed. 

But the original decision has been confirmed, almost in its entirety, by the Constitutional Court in a judgment which not only reserved scathing criticism of the AG’s “unsatisfactory” handling of the criminal case, but also declared that Maltese law does not conform with EU rules, since it does not allow criminal courts the faculty of varying such freezing orders. 

EU directive 2014/42 expressly states that anyone subject to a freezing order must have an effective remedy and a just process so that his rights are safeguarded and such person was to be afforded effective means of contesting that order. 

Mr Justice Toni Abela, who decided Dalli’s case at first instance, had noted that the freezing order itself did not violate the applicant’s rights. The breach stemmed from the fact that there was no way Dalli could contest the order before the ordinary courts, coupled with the 13-year delay in his case.  

All those factors together resulted in a “lack of proportionality between the general interest and the [applicant’s] rights.”

The Constitutional Court said that it deemed the AG’s attitude in the case as “most deplorable.”

Thirteen years since Dalli’s arraignment, the prosecution was still arguing that any possible future sum subject to confiscation was not yet quantified. 

The court observed that in drug trafficking cases, an expert was normally appointed to determine the value of the illicit substances seized. Yet in Dalli’s case this was never done and all the while, the freezing order remained in place.

It was only the AG who was to blame for such shortcoming, said the court. 

The situation was made worse when considering that the ‘drugs’ had been intercepted before they ever landed in Dalli’s possession and moreover, a forensic expert had subsequently confirmed that that substance was not ‘drugs’ at all. 

That fact was known before police pressed charges against Dalli. Despite that, the prosecution had still requested a freezing order over all of Dalli’s assets. 

Worse still, Maltese law gave Dalli no way of contesting that order once it was issued, with no legal avenue for appeal. 

The criminal records presented a “tangible” lack of communication between the police and the office of the AG and the court said it could not understand why the AG had requested transcripts of tapped phone calls in September 2012, three years after those recordings had been exhibited in court.

Three different experts were tasked consecutively with that brief, but the transcripts were still missing. 

One expert did not hand them in after a dispute with the Court Registry over his fees. Another expert appointed in 2018, had still not produced the required transcripts. 

Then in 2020, “surprisingly to all,” the AG asked the Magistrates’ Court to hear another eight witnesses and to compile more documents, prompting the prosecuting police officers to remark that “they were under the impression that no further witnesses were to testify in the case.”

Later, it was revealed that all the AG’s requests had already been fulfilled.

The Constitutional Court described this attitude as “totally inexplicable.”

The AG kept writing out the same note to the magistrate without seeming to bother to take stock of the case in general or at least read the minute referring to the previous sitting. 

Although the main focus in this case was not the delay in the criminal case, that factor was nonetheless relevant when assessing the proportionality of the freezing order that was meant as a temporary measure.

With the prosecution still to wrap up its evidence 13 years since Dalli was arraigned and with no clue as to when it would all end, it was doubtful whether such a measure could still be considered as “simply temporary.”

The appellants argued that the constitutional courts could not cancel such an order. 

But the Constitutional Court declared that it had the power to provide adequate remedies according to the particular circumstances of the case. 

“So there was nothing at law stopping the first court from ordering the cancellation of the freezing order in [Dalli’s] case,” said the court, presided over by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul. 

The appellants had not explained how it was still in the public interest for such an order to stand and if they were to have it their way, even the damages awarded by the first court would be frozen until, “perhaps one day,” the case is brought to a close. 

The court thus confirmed the judgment, including the damages awarded, varying it only in so far as his right to a fair hearing was concerned. 

Lawyers Arthur Azzopardi and Jacob Magri assisted Dalli.