Issue link: https://maltatoday.uberflip.com/i/1070939
10 maltatoday | SUNDAY • 13 JANUARY 2019 NEWS MATTHEW VELLA A Maltese judge has decided that a complaint made by the former Opposition leader Si- mon Busuttil alleging money laundering in the Panama Papers scandal, failed to sat- isfy the legal requirements for such a suspicion to merit a magisterial inquest. To make a quick recap of what happened, Busuttil nev- er filed a police report after the Panama Papers broke in 2016, insisting that it should be the police to investigate any wrongdoing of their own initiative. Shortly after in April – os- tensibly just weeks after a let- ter from FIAU director Man- fred Galdes recommending an investigation into Pilatus Bank – Commissioner for Po- lice Michael Cassar resigned. Towards the middle of 2016, Galdes too resigned, taking up a job in the private sector. After losing the election in 2017, Busuttil filed a report with a duty magistrate on the strength of the Criminal Code's Article 546, which al- lows for a magisterial in- quest to take place following the receipt of "any report, information or complaint" on an offence liable to the punishment of imprison- ment exceeding three years. On 26 July, Magistrate Ian Farrugia decreed there was enough prima facie evidence to merit an in genere inquest. That means that a magistrate selected at random is appoint- ed to lead an investigation ac- cording to Article 546 (4a) and (4b) which state: 1. that any "report, in- formation or complaint" made by a person other than the Attorney General or a po- lice officer must "contain a clear designation of the per- son suspected to have com- mitted the offence", and that after hearing the suspect, the magistrate will decide whether to hold the inquest only "after having established that the necessary pre-requisites for the holding of such an inquest exist." 2. this decision is then served on the person who made the report, allowing the suspect to appeal to the crimi- nal court for a reversal of the decision – Prime Minister Jo- seph Muscat, Konrad Mizzi, Keith Schembri, Adrian Hill- man, Karl Cini, Malcolm Scer- ri and Brian Tonna appealed the decision on 27 July. Busut- til also filed his reply to each of the writs filed by the appellant suspects. In the meantime… Busut- til protested the hearing of the appeal by Judge Antonio Mizzi, who is the husband of Labour MEP Marlene Mizzi. His request for recusal was re- fused by a criminal court, and confirmed on appeal by the Constitutional Court. By the time this decision was taken in October 2018, Antonio Mizzi was due to retire within two weeks, which appeal eventual- ly passed on to Judge Giovanni Grixti. So why did Mr Justice Giovanni Grixti overturn the first court's decision? Filing a complaint to a magistrate actually requires a higher degree of detail than the ordinary police report Keith Schembri – the PM's chief of staff and owner of the Tillgate Inc. company in Pan- ama and a host of other off- shore set-ups – and his busi- ness group director Malcolm Scerri, protested that Busut- til had "not observed the ele- ments of Art. 546 (4a) of the Criminal Code… which asks that whoever files the report must identify the crime they are alleging; describe the sub- ject material of the crime in detail; mention the manner and tool employed to bring about the crime; mention clearly the person suspected of committing the crime." The Appeals judge said the first court applied the wrong article of law Mr Justice Grixti said Mag- istrate Farrugia referred to Art. 536 – a report filed to the police – instead of Art. 546; the former allows the in- former to "as far as possible, furnish all such particulars as may be requisite to ascertain the offence…". However, Art. 546 (1) states that "each and every particular, shall be de- scribed, and the instrument, as well as the manner in which such instrument may have produced the effect, shall be indicated." This meant that it was the magistrate's decision as to whether information submit- ted by the complainant was sufficient or not. Additionally, Grixti says Busuttil made con- tinued – erroneous – refer- ence to Art. 536 in his lengthy observations on the replies of Joseph Muscat and Konrad Mizzi, as to the exhaustive de- tail of his allegation. The suspects were denied a right to reply to Busuttil's observations on the appeal On this Grixti said that the erroneous application of Art. 536 had a direct effect on the magistrate's decision, and further said that the suspects were not notified of Busut- til's replies to their appeal. "… When the complainant has filed ulterior explanations and new documents… there is an obligation for the suspect to be notified with this new information." Grixti was re- ferring to Schembri/Scerri's observation that Busuttil's reference to a quote by Ger- man MEP Werner Langen, the chair of the EP's PANA com- mittee, had been incorrect: "he did not say that the facts indicated 'a textbook case of money laundering' but that: 'It is not clear at the moment, but it looks like money laun- dering… we must be careful before drawing any final con- clusions over what it actually means'." Grixti remarked that he did not need to be drawn into a debate about the fundamental rights of suspects at pre-trial stage, referring to Busuttil's insistence that the magistrate was not obliged to inform the suspects of his reply to their appeal. "This court will not close its eyes to a potential breach of rights even if, ac- cording to the Hon. Busuttil, there is no article in the Crim- inal Code obliging the magis- trate to notify his reply to the suspect." Busuttil did not make a clear allegation of money laundering Grixti says it is "immediately evident" that Busuttil did not Six (longish) reasons Simon Busuttil's magisterial complaint fell f lat on its face in the Appeals Court Why a Maltese judge threw out Simon Busuttil's complaint for a Panama Papers investigation