Confused? Here’s Your Vitals Magisterial Inquiry Cheat Sheet
Former Prime Minister Joseph Muscat has come out strongly against the way charges are being issued in connection with the Vitals magisterial inquiry.
“Several lawyers have told me that, for the first time in their living memories, people will get charged in court without being granted the basic right to give a statement in advance,” Muscat said.
Prime Minister Robert Abela was among those who criticised the manner in which the charges were made, also saying that Muscat was denied of his basic right to defend himself.
With the word “basic right” being thrown around, and clearly very many opposing opinions by different Maltese lawyers on this matter, one thing is clear – we are threading very murky and uncharted legal waters, with a possible legal debate cropping up.
Lovin Malta reached out to a number of lawyers who also had differing opinions on the matter and how the situation could play out, and we are here to break it down for you because in times of legal uncertainty, it is of utmost importance to ascertain the legal facts.
What legal debate?
Prominent criminal lawyer Franco Debono posted a statement on Facebook, alleging that the Labour Party has denied suspects the right to provide a statement while under investigation.
Other lawyers, including Robert Abela himself, suggest that this could lead to challenges to the charges and potentially initiate constitutional proceedings based on the assertion that the right to a fair hearing has been violated.
Some argue that because the suspects were not interrogated before being charged, they cannot comprehend the nature of the charges against them or have access to the inquiry’s conclusions.
So, if many prominent figures, including former Prime Minister Joseph Muscat and Franco Debono, contend that the charges amount to a violation of the suspects’ rights since “the correct procedure was not followed,” why were Muscat and others deprived of the chance to provide a statement?
The criminal code does not stipulate the suspect’s right to a police statement before being charged.
What is specified are the rights of those arrested, not charged. These encompass the right to information and the right to legal representation.
Meanwhile, Joseph Muscat is being summoned to appear in court, not arrested, and technically, the law does not compel the police to summon, interrogate, or even inform the suspects before deciding to press charges.
Therefore, in this instance, the right to disclosure, whereby suspects are shown the evidence against them, is not a prerequisite since they were not arrested.
Although no legal rights were technically breached as outlined by the criminal code, many lawyers insist that the Attorney General did not follow the correct procedure in charging the suspects.
Over time, a legal convention has developed whereby suspects are given the chance to ‘defend themselves’ through interrogation or providing a police statement before their names are disclosed.
This implies that while it may not be a legal requirement to afford suspects the opportunity to provide a statement before being charged, it is considered good practice to refrain from bringing them to court without affording them the opportunity to, in a sense, defend themselves.
In case all the preceding information appears convoluted, we’re providing you with a legal cheat sheet to help you keep track of the developments… you can thank us later.
What is a Magisterial Inquiry?
A Magisterial Inquiry, as its name suggests, is an investigation conducted by a Magistrate who acts not as a court but as an unbiased agent of justice. It aims to investigate thoroughly upon receiving any report, information, or complaint from the Police regarding an offence punishable by imprisonment exceeding three years.
The main objective of the Magisterial Inquiry is to preserve evidence related to a criminal offence in the most effective manner possible.
How is a Magisterial Inquiry launched?
The Magistrate is unable to initiate an inquiry independently; therefore, it is imperative that a report or complaint be filed before them. This report, information, or complaint can be submitted either by the police, Attorney General or by a private individual.
The Role of the Attorney General in Magisterial Inquiries
Once the inquiry is initiated, the Attorney General promptly receives the report. Throughout the inquiry, the Attorney General is granted exclusive access to all its proceedings, maintaining confidentiality from the general public. However, the Attorney General retains full access to the inquiry’s records.
Following the inquiry’s conclusion, if the duty magistrate identifies an individual as a potential offender based on prima facie evidence during the inquiry, they will specify the suspected individual in their conclusions and instruct the commissioner of police to initiate criminal proceedings against them.
If disagreement arises between the commissioner of police and the duty magistrate regarding whether to charge any suspects, consultation with the Attorney General occurs. Ultimately, the Attorney General holds the authority to instruct the commissioner of police not to pursue criminal proceedings.
Should the Attorney General exercise such discretion, a comprehensive report must be submitted to the President of Malta, outlining the rationale behind the decision.
What has happened up until now?
A Magisterial Inquiry into the privatisation of three state hospitals was requested by NGO Repubblika some four and a half years ago.
The Inquiry was concluded by Magistrate Gabriella Vella about a month ago.
Former Prime Minister Joseph Muscat, as well as many other Ministers and public officials who served under his legislature, are a subject of the probe.
Why Magistrate Gabriella Vella?
In practice there is a formal roster between Magistrates as to how to carry out the Magisterial Inquiry. This gives rise to the role of the Duty Magistrate, who by law is obliged to carry out an inquest on the spot.
Is there a time limit for the Magistrate to conclude the Inquiry?
Prime Minister Robert Abela has strongly criticised Vella and cast doubt on her credibility, alleging that she deliberately timed the conclusion of her work to coincide with the upcoming election.
The magistrate, who has been accused by Prime Minister Robert Abela of taking an excessive amount of time to complete the Vitals inquiry, reportedly has another 94 inquiries awaiting attention, according to court statistics.
Abela has consistently argued that, according to the law, Vella should have completed her inquiry within 60 days, and that the four-year duration it took her to finalise the Vitals inquiry was “unjustified.”
However, while the law mandates that the report should be concluded within 60 days from the initiation of the inquiry, it stipulates that if the magistrate fails to meet this deadline, they are required to provide the Attorney General with a report detailing the reasons for the delay.
Can suspects testify during the Magisterial Inquiry?
Joseph Muscat, one of the individuals to be charged following the inquiry, claimed that the Inquiring Magistrate did not allow him to testify before her.
In January 2022, as part of the investigation, police officers conducted a search of Muscat’s residence in Burmarrad and confiscated several electronic devices.
Individuals identified as suspects in an application submitted by a private citizen for a magisterial inquiry have the right to be informed about the application and to lodge an objection.
Conversely, individuals who surface during the course of the inquiry do not enjoy such rights. In the Vitals inquiry, the initial application was lodged against Konrad Mizzi, Chris Cardona, and Edward Scicluna.
Mizzi and Scicluna have been charged, but Cardona hasn’t.
If the decision is made to press charges, the suspects will receive disclosure of all evidence against them following their arrest, or if not arrested, during the compilation proceedings.
Do suspects have a right to issue a police statement before being charged?
While this is not a legal right by any means, a common practice has evolved whereby suspects are provided with the chance to issue statements to the police before charges are pressed.
Why are money laundering charges different to other criminal charges?
In money laundering cases, the burden of proof is reversed.
In typical proceedings, the prosecution is obligated to substantiate their charges beyond a reasonable doubt.
However, in money laundering cases, the prosecution is only required to meet a lower standard of proof, referred to as prima facie, following which the defendant must demonstrate that their assets and funds originated from a lawful source.
For this reason, some lawyers are insisting that since the burden of proof falls on the person suspected of money laundering, this is all the more reason for them to be allowed to issue a police statement prior to being charged.
Why wasn’t Joseph Muscat arrested?
Instead of being physically restrained and transported to court in a police vehicle, the suspect is instructed to appear in court on a specified date and time through a summons issued during arraignment.
The law does not provide extensive criteria regarding whether the prosecution should arraign a person under arrest or by summons, merely stating that the latter should be employed “where there are not sufficient grounds according to law for the arrest of any person charged with an offence.”
In this scenario, the law does not mandate the police to summon, interrogate, or even inform suspects before deciding to press charges.
Consequently, as there is no arrest, there is no interrogation, and therefore the suspect is not entitled to the ‘right of disclosure’, that is the right to see the evidence the police have against them.
Will Magistrate Gabriella Vella be assigned the cases?
It is not within the purview of the inquiring Magistrate to determine the certainty or probability of any individual’s responsibility.
Traditionally, once the police request the summoning of an individual to court for proceedings, or if such person has already been accused of an offence under investigation by the Magistrate, it is customary for the Magistrate to be informed to discontinue the inquiry.
In this particular case, Magistrate Vella will not oversee the cases since the inquiry was in her hands.
The cases have been split into two groups and allocated to two separate magistrates.
The first group, consisting of individuals like Muscat, Mizzi, and Schembri, has been entrusted to Magistrate Rachel Montebello.
Who is being charged and what charges are they facing?
Joseph Muscat is set to appear before a magistrate to respond to charges of money laundering, corruption, bribery, and the establishment of a criminal association, among other allegations.
If convicted, Muscat, along with Keith Schembri and Konrad Mizzi, could potentially face up to 18 years behind bars.
Another 11 individuals and eight companies are also accused of offences like money laundering and other significant crimes.
Additionally, a second group comprising 14 individuals and two companies will be charged with secondary offences. This group includes Deputy Prime Minister Chris Fearne, Central Bank governor Edward Scicluna, and high-ranking civil servants.
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