Constitutional Court judges refuse recusal request by Vitals defendants

Malta’s highest court has thrown out a request for the recusal of the three judges presiding over it in their contestation of the freezing orders against disgraced former Prime Minister Joseph Muscat and his fellow defendants in the criminal proceedings over the government’s ill-fated hospitals deal with Vitals Global Healthcare.

Muscat, together with Konrad Mizzi, Keith Schembri, Clarence John Coger Thompson, Christopher Spiteri, Jonathan Vella, David Joseph Meli, Ivan Vassallo, Mario Victor Gatt, Brian Bondin, Adrian Hillman, Pierre Sladden, Brian Tonna, Karl Cini, Sciacca Grill Limited, Kasco Engineering Company Limited, FSV Limited, MTrace plc, Gateway Solutions Limited, Technoline Limited, Eurybates Limited, Taomac Limited, Nexia BT Limited had filed a court application in August, asking that a copy of the case file from the criminal proceedings - not against them, but against the second cohort of defendants to be prosecuted over the fraudulent hospitals deal be exhibited in the acts of the constitutional case they had filed to attack the short timeframe provided by law to file appeals on freezing orders.

When the court rejected that request, the appellants had jointly demanded the recusal of the three judges presiding the Constitutional Court: Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul.

The defendants had pointed at the fact that the same judges had, in the civil case filed by Adrian Delia, had dissolved the contract granting hospitals concession on the grounds of collusion and fraud, and argued that this would result in a breach of their right to a fair hearing, citing article 734(d)(i) of the Code of Organisation and Civil Procedure, which allows the recusal to be requested when the judge had already “given advice, made submissions before the court or written about the case, or about anything related to the case or which depends on it.”

“The issue at hand today is about shortcoming which the appellants are alleging in the Proceeds of Crime Act where the Seizure and Freezing order against them is concerned, and this in regards to their fundamental right to a fair hearing and peaceful possession of property. An issue which was not the merits of the [case filed by Adrian Delia].”

The reference to the judgement which the appellants claim had been made in the magisterial inquiry into the hospitals deal, did not impinge on the impartiality of the judges, they said, adding that “in any case [the court] had made no judgement about the appellants in their personal capacities. This court is not going to pass judgement on the merits of the charges which the appellants are facing in the criminal proceedings against them. That is the competence of the courts of criminal jurisdiction.”

“The only thing said in the 2 September decree was that the outcome of the appeal did not depend on what might have happened in other criminal proceedings to which the appellants are not parties,” the judgment read.

After examining the arguments made by the appellants the court said that it was of the opinion that there were “no legitimate reasons that could lead to an objective justification that the judges are not impartial in the issue being examined in the appeal.”

The recusal request was therefore rejected with the court also ordering that the related costs be borne entirely by the appellants.