Issue link: https://maltatoday.uberflip.com/i/1543837
A constitutional court has found that Francis Portelli and Antho- ny Cassar had two fundamental rights breached: that of a fair hearing and the peaceful enjoy- ment of their possessions, due to a freezing order which remained in force for almost 13 years. Virtu Group director Francis Portelli, 69, of Ta' Xbiex, and Cassar Shipping boss Antho- ny Cassar, 69, of Tarxien, had been charged with corruption, money laundering and com- plicity in trading in influence in 2013. The freezing order in dispute had been issued during these proceedings. In their constitutional appli- cation, the pair argued that the order had remained in force for almost 13 years, covering all of their assets. No proper judicial assessment had been carried out to determine whether the value of the frozen property was proportionate to the al- leged criminal proceeds. The applicants complained that, despite the passage of many years, the prosecution had nev- er quantified the alleged pro- ceeds of crime, while the freez- ing order remained in force over all of their property. They stressed that the prose- cution only closed its evidence in October 2020, after separate constitutional proceedings had already established that the criminal proceedings had suf- fered from unjustified delay. After the prosecution's ev- idence closed, the applicants attempted to obtain a revision of the freezing order so that it would be limited to the maxi- mum amount of alleged pro- ceeds. They filed requests be- fore the criminal courts in 2022 and again in 2024, but these were rejected. One important obstacle was Act VI of 2024, which intro- duced a new legal framework regulating freezing orders and the confiscation of assets. Un- der this regime, the courts have the power to review or vary freezing orders and limit them to the amount of the alleged criminal proceeds. The new regime excluded criminal proceedings that had already been left for final sub- missions or judgment from the benefit of the new rules. Since the applicants' criminal case had already reached that stage, they could not rely on the new legislation. The applicants therefore also argued the lack of an effective remedy violated their funda- mental rights. The Attorney General and the State Advocate argued that the applicants had not exhausted ordinary remedies and that the constitutional court should therefore decline to hear the case. The court rejected this and found that the applicants had in fact tried to use the rem- edies available under ordinary law by filing several requests before the criminal courts in 2022, 2024, and again during the course of these constitu- tional proceedings. The court further noted that the respondents had failed to show that any ordinary remedy had been truly effective in ad- dressing the alleged violation suffered throughout the long period during which the freez- ing order remained in force. Breach of peaceful enjoyment of possessions The court then turned to the complaint alleging a breach of the peaceful enjoyment of possessions. It accepted that the freezing order had been issued in accordance with law and pursued a legitimate aim, namely preserving assets that might be connected to crimi- nal activity. However, the court found that the crucial issue was proportionality. The court emphasised that even where a freezing measure is lawful and serves a legitimate purpose, it must still maintain a fair balance between the pub- lic interest and the individual's property rights. It highlighted that a seizure or freezing meas- ure cannot remain legitimate if it is imposed and maintained without an assessment of whether the value of the seized property corresponds to the possible confiscation claim. The court noted that the freezing order had remained in force from February 2013 for almost thirteen years without ever being properly varied so as to reflect the alleged proceeds of crime. It found that this lack of review and adjustment was disproportionate. Breach of right to a fair hearing The court also found a breach of the applicants' right to a fair hearing. The applicants had ar- gued that they had no effective remedy through which they could ensure that the freezing order was reviewed for propor- tionality. The court considered that the applicants had effec- tively been denied meaningful access to a court on the issue of whether their assets should continue to remain subject to the freezing order. The court concluded that the applicants had been prevented, for many years, from obtain- ing a judicial determination on whether the freezing order should be varied in a propor- tionate manner. During the course of the constitutional case, the law changed again with the intro- duction of Act XXX of 2025, which removed the restriction created by the transitional pro- vision. The applicants filed a new request before the Court of Magistrates on 12 August 2025, requesting the criminal court to regulate and limit the freezing order. The court therefore declared that both of the applicants' rights had been violated from the date of the freezing order until the 2025 amendments. As for compensation, the court held that an award of moral damages was justified. It fixed compensation at €300 per year for each applicant for the twelve-year period during which the violation persisted, resulting in a total award of €7,200, to be paid by the re- spondents jointly and several- ly. This sum was to be divided equally between the two appli- cants. Although the court found violations of both the proper- ty right and the right to a fair hearing, it did not itself revoke or vary the freezing order. In- stead, it ordered that, once fi- nal, a copy of the judgment be sent to the criminal court deal- ing with the pending request to regulate the freezing order. Judge Lawrence Mintoff handed down the judgement. 4 maltatoday | WEDNESDAY • 11 MARCH 2026 prosecution objected, citing the seri- NEWS MAYA GALEA mgalea@mediatoday.com.mt Money laundering suspects' rights breached by a 13-year-long freezing order ENEMALTA OIL SCANDAL: Francis Portelli (centre) with Anthony Cassar (right) emerging from court