The Vitals headaches: Charged by summons and a court hall not big enough

Storm clouds in the form of both legal and logistical obstacles, loom over the impending arraignments of the individuals to be charged in connection with the Vitals deal.

On the legal front, there is an almost ubiquitous sense of shock and even disgust amongst the legal community, at the manner in which the charges have been issued. Pressing charges without questioning the suspects first, although not illegal, is a first for Malta in such a serious case and many lawyers have expressed disbelief at the tactic, which has been described as underhanded.

As the suspects will be charged by summons, and not under arrest, the prosecution have done away with the need to interrogate them first. Joining the dots is important here because no interrogation means no need to disclose the evidence against the suspects, and that allows them space to allege a fundamental rights breach, which could draw out and complicate the proceedings further. For a more in-depth explanation of this point click here.

A human rights breach in the making?

As one defence lawyer explained to MaltaToday, this creates a problematic situation. “What can impinge on human rights is the lack of disclosure - I’m not being given a copy of the inquiry, yet you're taking me to court. And I don’t know the conclusions. The right to disclosure is a human right too.”

“It's unfair, to say the least, that suspects are not given the opportunity to state their version of events (after being given adequate disclosure of evidence) - especially given the special rule applicable solely to money laundering charges, that is, the shifting of the burden of proof onto the defendant, who has to prove his innocence.”

So although not necessarily fatal to the criminal action - because the concluded inquiry is the prosecution’s best evidence and this one in particular is likely to have been incredibly meticulous - the lack of disclosure is almost certainly going to result in constitutional proceedings, which will cause considerable delays to the criminal cases.

Now, add to this mix the fact that, starting from the moment that the suspects are arraigned, the prosecution will have just one month to prove to the satisfaction of the court that there is a prima facie case to answer for, and you have all the makings of a legal fiasco. 

Never mind the elections, the timing everyone should be worrying about is that one month period.

But besides the prosecution having potentially torpedoed their own case before it even started, there is another, practical but equally intractable, problem that has no apparent solution: Where to hear the cases?

A problem of space

By deciding to charge 19 people at one go, the prosecution appear to have also hamstrung the court administration. 

Time for some simple maths: Assuming each defendant has just one lawyer - unlikely given the profile of the case - that already places 38 people in the courtroom, to whom must be added at least five prosecutors (three AG lawyers and two police inspectors), not to mention court clerks and ushers, security personnel, members of the press and defendants; family members besides any members of the public who may decide to observe the proceedings. A conservative estimate would be around 50 people, but there will likely be more.

Now, anyone who has set foot in Malta’s courts will know that there is currently no courtroom that can fit that many people in it and continue to function. Keeping the public and press corps in one courtroom, with a video link to the one in which the defendants, their lawyers and security staff will be packed like sardines appears to be the only half-plausible solution, and even then, that would create a potential transparency problem if the video or audio feed encounter technical difficulties, which are by no means a rarity. 

How that issue will be tackled remains to be seen. Questions about the logistical aspect of the case were sent to the Court Services Agency and the Justice Ministry on Wednesday. No reply has been received yet.