Judge orders prosecutors to close Enemalta oil scandal evidence-gathering
The Maltese courts have accorded €7,000 in damages to the Enemalta oil scandal suspect Tancred Tabone, whose prosecution and continued freezing of assets has not yet resulted in a trial since his arraignment in 2013.Tabone, owner of the Forestal
The Maltese courts have accorded €7,000 in damages to the Enemalta oil scandal suspect Tancred Tabone, whose prosecution and continued freezing of assets has not yet resulted in a trial since his arraignment in 2013.
Tabone, owner of the Forestals tech-retail store, was famously the former president of the Chamber of Commerce as well as a chairman of Enemalta when MaltaToday unearthed a host of invoices and emails pointing at a system of ‘commissions’ paid by oil trader George Farrugia to Tabone, amongst others.
The Civil Court in its constitutional jurisdiction, presided by Mr Justice Toni Abela, has now decreed that Tabone should be allowed to finally appear in two hearings in court for the compilation of evidence, and after those hearings, the prosecution’s compilation of evidence should be regarded as closed.
Tabone was arraigned with several other business partners – a former consultant Frank Sammut, and oil bunkering partners Francis Portelli and Anthony Cassar – but 11 years on, the cases remain pending due to the sluggish pace of the prosecution’s evidence gathering.
Tabone, who was charged with the offence of money laundering from the year 2000 to 2012, told the court he was now over 70 years of age, and despite 63 sittings since his arraignment, the prosecution had yet to close its investigation.
Tabone’s lawyers told the Court that since 2014, the state prosecutor had justified the delay in proceedings over requests for evidence from abroad.
Although Tabone’s businesses have flourished since 2013 – the Forestals group continues its operations, while his and his co-accused’s oil bunkering business was passed on to their children – he complained of the continued freeze on his personal assets, which is the subject of another constitutional case.
Since 2013, several witnesses Tabone intended calling to his defence have also died: specifically, Alfred Mallia, George Borg, Raymond Soler, Robert Staines, Joseph Stellini, John Pace, Renato Agius Muscat, Charles Gatt and John Cachia. “Because of the manifestly negligent manner in which the inquiry was conducted by the defendant Attorney General, the defendant will be seriously prejudiced in his defence,” Tabone’s lawyers told the court.
Judge Toni Abela quoted an extensive corpus of European case-law, noting that the European Court of Human Rights “pays special attention to clearly excessive periods of inactivity” and that the longest time accepted by the Court is “rarely more than five years and almost never more than eight years of delay.”
“The court cannot take a passive attitude by allowing the parties to determine the process, such as when there have been several deferrals…
“The circuitousness of proceedings cause great prejudice to the defendant… the applicant has had his life determined by the case because he has a freezing order which practically paralysed him in his commercial activities. He has had to sell shares and property, even withdraw his insurances, to pay for medical expenses.”
Abela said delays might often be justified by deficiencies in the system, such as when prosecuting inspectors are handling other cases. But the judge said the European Court of Human Rights has repeatedly held that the Convention “imposes on the contracting States the duty to organise their juridical system in such a way that the Courts can meet the requirements of this provision.”
Abela said unreasonable delays cause prejudice to the accused, citing as an example the numerous witnesses that had passed on before testifying.
“When the Court sees all this it understands the maxim of ‘justice delayed, justice denied’ - lengthy proceedings dry up evidence, some evidence vanishes over time, and the memory of witnesses is affected.”
However Mr Justice Abela also noted that Tabone was aware that, as the witnesses he intended producing in his defence passed away between 2015 and 2019, “he did nothing during the proceedings to draw the Court’s attention to the prejudice that the delay was causing, so that perhaps the Court might understand that it should not allow further deferrals.”
Still, the judge said the main responsibility for the expeditious conduct of any hearing lied with the presiding magistrate, and added that the passive attitude of the parties did not release the Courts from the obligation to ensure the hearing within a reasonable time limit.
Having considered all the circumstances, he ordered the payment of €7,000 in damages to Tabone. But Abela added, in accordance with article 46 of the Constitution, he was ordering the Court of Magistrates to give two other hearings – and in a short period of time of each other – for the prosecution to close the presentation of its evidence.
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