Issue link: https://maltatoday.uberflip.com/i/1503554
4 NEWS maltatoday | WEDNESDAY • 12 JULY 2023 4 NEWS Pilatus nolle prosequi 'not last word' insofar as charges are concerned, State Advocate tells judge MATTHEW AGIUS FORMER Pilatus Bank official Claudeanne Sant Fournier has asked to be a party in Repubbli- ka's case challenging the Attor- ney General's decision not to charge several senior bank offi- cials. Claudeanne Sant Fournier, who was the bank's money laun- dering reporting officer, was the only bank official, apart from the bank itself, to be charged with money laundering by the police. However, a magisterial inquiry into the bank's operations had indicted several other officials apart from Sant Fournier, who were never charged by the po- lice after the Attorney General issued a nolle prosequi. Repubblika is challenging the AG's decision to issue a nolle prosequi. Sant Fournier's lawyer Stefano Filletti explained to Madam Jus- tice Doreen Clarke this after- noon that this case was for ad- ministrative review of the AG's actions on the Pilatus inquiry. When Sant Fournier was ar- raigned, the charges had been issued against her personally, said the lawyer, adding that this had come as a surprise because she had been assured that this would not happen just two hours before her arraignment. "More importantly to this case," Filletti said, "she was also arraigned vi- cariously." "So, she is carrying the respon- sibility for Pilatus Bank, because she had been one of its direc- tors." There was a "vast difference" between Antoniella Gauci's request to join the same case, which had been rejected and Sant Fournier's, argued the lawyer. This was because the AG had chosen not to proceed against Gauci, another former senior bank official, and had in- stead opted to only charge the MLRO. "Antoniella Gauci's fears were hypothetical, but Claudanne Sant Fournier's are not. She stands charged vicariously, an- swering for the behaviour of the bank and all of its officials, in- cluding Gauci," said the lawyer. "So, she has an interest in un- derstanding the decision taken by the AG. Because that decision has an impact on her, good or bad." The experts appointed to assist in the inquiry, Duff and Phelps, had placed Sant Fournier and Gauci on the same level at the bank," he said. "Sant Fournier should have been Gauci's supe- rior, but the experts concluded that they both carried out the same function, operationally. Sant Fournier had also spent a long time away from the bank and so Gauci had been elevated as acting MLRO in her place." "If they are at par, doesn't Claudeanne have an interest in finding out why this decision was taken with regards to her colleague?" This was discrimination, ar- gued Filletti. "What benefit did Gauci receive that Sant Fournier didn't? Why did the AG choose to only charge her? Why is she answering for someone else's ac- tions?" The decision not to prosecute Gauci, called a nolle prosequi, also affected Sant Fournier's defence, Filletti pointed out, because had Gauci also been charged, she would have been a co-accused in the eyes of the law and therefore could not be forced to testify against her. "The fact alone that Gauci was given a nolle prosequi, means that she is now a competent and compellable witness against Sant Fournier," explained the lawyer. Filletti told the court that at law, the bank as a legal entity did not have the capacity to intend the consequences of its actions, and so that had to be deduced from the actions of its employ- ees, which included Gauci. "The AG is playing god with people's lives," stated the lawyer. "I have the conclusions of an in- quiring magistrate, irrespective of whether I agree with him or not. We know the State was under im- mense pressure to charge people at the time, and the only person to be charged is a mother of two chil- dren. Is she Pilatus Bank?" Replying to the defence, lawyer Fiorella Fenech Vella, represent- ing the State Advocate in the proceedings, explained that the AG had not objected to Gauci's nolle prosequi, because should there be a change in circum- stances, charges could still be pressed. "At this stage, proceedings hav- en't been filed against Gauci, but it is not excluded that proceed- ings could be filed in future." Fenech Vella suggested that this was not the correct forum to handle the arguments raised by the opposing counsel. Filletti counter-argued that there was "no coming back" af- ter a nolle prosequi is issued. "A nolle prosequi is fatal [to the criminal action]." His client had an interest in protecting herself against ac- tions taken by the State against her, said the lawyer, "but I also have an interest in this case be- cause Sant Fournier is essential to conclude whether the AG's decision is just and reasonable in the circumstances." "The difference in treatment, the discrimination, it is the antithesis of justice. The AG doesn't have the luxury of using people as pawns. She cannot ex- ercise her discretion arbitrarily and unjustly." Jason Azzopardi dictated a note on behalf of Repubblika, pointing out that today's sub- missions meant "that the AG took the decision in under six months, with great haste to is- sue a nolle prosequi… and now, to cover her back, is leaving the door open for it to be revoked." He described it as a "legal her- esy," to say that a nolle prosequi could be revoked. Fenech Vella replied to the ar- guments by saying that the AG had not issued a warrant under her signature, to order the dis- charge of the accused, but had used a different section of the Criminal Code which allowed her to direct that no proceedings were to be taken regardless of the instructions specified by the inquiring magistrate. "Any order made by the AG is without prejudice to the AG's right to order otherwise when- ever new evidence becomes available," she said. The case was adjourned to Thursday for decrees on the ap- plications filed yesterday. Pilatus Bank's former money laundering reporting officer Claudeanne Sant Fournier asks to be made a party to Repubblika's case over Attorney General's failure to charge other high-ranking bank officials Pilatus Bank was shuttered in November 2018