Repubblika challenge to have Pilatus Bank officials charged rejected

Updated 16 January with full judgement details

Repubblika’s request that Police Commissioner Angelo Gafa be ordered to institute criminal action against top Pilatus Bank officials was rejected by a Court on Tuesday.

Robert Aquilina, in his capacity at the time as President of NGO Repubblika, instituted ‘challenge’ proceedings against the Commissioner of Police, which proceedings are utilised in criminal law so that it may be determined on a prima facie basis whether a ‘notitia criminis’ (such as a complaint or ‘kwerela’) should result in the taking of effective criminal action against persons identified therein.

In this regard, the application filed by Aquilina concerned a challenge regarding the lack of institution of criminal proceedings against a number of individuals identified as top Pilatus Bank officials. 

In his application, Aquilina stated that he was personally aware, through sources of investigative journalism, local news reports and privileged sources, that a Magisterial Inquiry concerning Pilatus Bank had ordered the taking of criminal action against the identified individuals in 2021.  It was further stated that the Inquiry, concluded in early 2021, had ordered the Commissioner of Police and Attorney General to issue various criminal charges in connection with various facts indicated therein. 

The application furthermore provided that a notitia criminis sent to the Commissioner of Police by Aquilina was ignored, with the corollary that the Commissioner was effectively refusing to abide by the orders of the inquiring Magistrate. 

The Commissioner for Police, in its reply, stated that the request should be rejected. It held that the pleas made by Repubblika did not satisfy the requisites of the law on challenge proceedings.

The Court made reference to the testimony provided by Aquilina during various sittings related to the challenge proceedings, in which the notary explained how, through various ‘sources’, he came to be aware that ‘direction’ had been given in the inquiry commonly known as the ‘Pilatus Bank Inquiry’ to the effect that criminal action is taken against numerous persons identified therein, and that only one of said persons ended up being charged. Aquilina explained that he was aware of information and that he would not identify his sources so as to avoid exposing them. 

The Court passed on to examine the proof which had been submitted before it, which mainly consisted in the testimony variously provided by Robert Aquilina and members of the Police corps. The Court noted that Aquilina had made various references to sources and third-parties who are public officers providing him with internal information regarding the inquiry.

Yet, the Court submitted that a lot of speculation and hearsay resulted, inasmuch as the majority of Aquilina’s testimony was based on what he was being told by various officials who were not indicated. It was held that the vague manner in which declarataions were made by the witness meant that the Court was not presented with clear, direct, and unequivocal proof. ‘Facts’ which were being presented were based on what Aquilina had heard from the media, or on ‘sources’ which, according to the Court, were not subject to control and could be subject to selective interpretation. 

The Court made reference to Aquilina’s observation that ‘he knew with certainty, from third-party police officers, that the Commissioner for Police has the inquiry yet decided not to proceed regarding the conclusions which emerged’. An examination of an expert-report was made limitedly so that an evaluation of the recommendations as regards the five suspects could be made, inasmuch as the challenging party hade emphasised upon these conclusions. The Court held that in the part of the recommendations no mention is made of the persons forming part of the challenge. 

The Court also noted that the claims put forward in the application regarding offences contemplated by the Prevention of Money Laundering Act could not be decided upon by the Court in terms of the law on challenge proceedings. 

The request put forward by Repubblika was ultimately rejected, with insufficient evidence for a prima facie case being put forward. 

Court orders investigation into leaks

In the same judgment, the Court presided over by Magistrate Nadine Sant Lia ordered that a copy of all witness testimony and evidence exhibited during the proceedings be sent to the Police Commissioner to immediately institute an investigation into how direct physical access to the inquiry was provided to third parties, including Aquilina who had stated variously that the inquiry was shown to him in its original state and that he had no legal authority to do so at the time. 

The Court remarked that every inquiry is a restricted document to which very few persons retain access. The witness declared under oath that he was provided access to the original inquiry, with this leading one to believe that one of the few persons who had access to the inquiry may have had ulterior motives. 

It saif that the fact that a witness declared that he saw the inquiry in its original form is ‘shocking’.  This only served to prejudice the integrity of the inquiry.