Two directors of a financial services firm are claiming in court that money laundering proceedings against them should be dropped because they run counter to the principle of double jeopardy, and breach their fundamental rights.
Zenith Finance directors Matthew Pace and Lorraine Falzon have filed a constitutional application in their personal capacity as well as on behalf of their investment company, arguing that the facts underpinning the money laundering charges are identical to those on the basis of which Zenith Finance was ordered to pay a hefty administrative fine three years ago.
This, they pointed out, was confirmed by a representative from the Financial Intelligence Analysis Unit (FIAU) when summoned to testify at the ongoing compilation of evidence in June.
The witness had explained that the FIAU had fined MFSP Financial Management Ltd - as Zenith Finance was formerly known- €38,750 in 2018 for administrative shortcomings flagged by analysts during investigations into the company’s operations.
Zenith Finance had received a letter from FIAU in December 2017 informing it about investigations concerning business relations the company had entered into with “two natural persons” since 2011 and 2012 respectively.
In May 2018, the company was held liable for administrative breaches by the Compliance Monitoring Committee and was ordered to pay the almost €40,000 fine within 20 days.
Upon the lapse of that time limit, the company received another letter informing it that unless the penalty was settled within 14 days garnishee orders were to be issued in its regard.
That fine was duly settled.
But three years down the line, in March 2021 Zenith Finance and its directors were targeted with criminal charges linked to allegations concerning various acts of money laundering committed between 2008 and 2020.
While proceedings continued and just over a year since those arraignments, the FIAU representative confirmed that the charges were in fact linked to the same individuals in relation to whom Zenith Finance was fined in 2018, the court was told.
Although the FIAU witness had refused to divulge the names of those persons in court, defence lawyer Edward Gatt had named them as former OPM chief of staff Keith Schembri and former Allied Group managing director Adrian Hillman.
Such a scenario clearly ran counter to the fundamental principle of justice that a person could not be tried twice for the same offence, the directors argued in their application.
Citing local and European case law, their lawyers said that argument as to whether an administrative fine was tantamount to a criminal penalty was tackled in ample case law and in this respect the severity of the fine imposed had to be taken into account.
In a 2015 judgment presenting the same scenario the Constitutional Court had concluded that “not only was the applicant tried twice on the same facts but was also punished twice” and this breached his fundamental rights.
The directors asked the First Hall, Civil Court in its constitutional jurisdiction to declare that the pending criminal proceedings in their regard breached the principle of double jeopardy and consequently their fundamental rights.
Those proceedings were to be declared unlawful and were to be dropped, said the applicants, requesting the court to provide all necessary measures to safeguard their rights.
Lawyers Edward Gatt and Mark Vassallo signed the application.
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