Criminal Court revokes inquiry into VGH hospital transfer

The Criminal Court has revoked an order to hold a magisterial inquiry into the transfer of three public hospitals to Vitals Global Healthcare that would have placed Ministers Konrad Mizzi, Edward Scicluna and Chris Cardona under magisterial scrutiny.

The inquiry had been requested by rule of law NGO Repubblika in order to establish whether Scicluna, Cardona and Mizzi as well as Technoline managing director Ivan Vassallo had given the group of investors behind VGH an unfair advantage in the contract’s selection process.

The allegation had been made in the press.

Magistrate Claire Stafrace Zammit had upheld the request last July, defending investigative journalists, saying their work was crucial to ensure democracy in the country.

But in a decree handed down in the past hours, Mr. Justice Giovanni Grixti overturned Magistrate Stafrace Zammit’s ruling. 

The ministers had replied to the allegations by saying that they were simply “a series of empty conclusions and speculation that is not supported by evidence of wrongdoing.”

It was not true that the alleged wrongdoing had not been investigated, said the ministers, rather it had been investigated by the National Audit Office and the Auditor General. Many “gratuitous allegations and falsehoods” had been said with regards to the deal, they argued, listing the alleged involvement of Crossrange Holdings, Gozo Global Healthcare, Gozo International Medicare among them.

After a detailed decription of the various milestones in this case, the court criticised the attitude taken by Repubblika it its repeated re-introduction of documents the court had ordered to be expunged from the case file.

The applicants had also made their request for an inquiry under the wrong subarticle of the law, said Mr. Justice Grixti.

The ministers were also right to complain about the irregular release of documents, part of the inquiry’s secret proceedings, to Repubblika and the press. The magistrate was right in ordering the police to investigate the leaks.      

On the merits of the decision, Magistrate Stafrace Zammit had ruled that “The person filing the report need not describe the subject matter in all its detail – this should result from the inquiry and is precisely the reason for which the inquiry is held. It is the role of the inquiring magistrate to hold site visits and investigate the case on allegations made to him and must principally collect and preserve all direct and indirect proof.”

The magistrate erred, however, when she based her decision on the facts as laid out in the application and the amount of documents presented in this context, said the judge.

“This court does not agree at all with this proposal because the law obliged precisely the opposite…Therefore the decision of the Magistrate rooted in her opinion that the complainants did not have this obligation is a mistaken decision. The Magistrate cannot authorise a dispensation from the obligations of the complainant.”

Despite this, said the judge, he had minutely examined the application and the documents attached to it, “including the volume of footnotes that in the most part, refer to writings on internet blogs and internet news reports and the like.” Likewise the replies of the suspects and the documents they referred to, as well as all the observations made during the course of these proceedings.

“Few, if any, are those facts which the complainants know personally,” noted the court, saying they had only declared this on one occasion. Rather, the facts stated were a collection of journalistic opinions, bloggers and other opinions which they chose to amalgamate so as to take as a fait accompli that the suspected persons had a plan made well in advance to award the hospital concessions to VGH, a company without experience in hospital management, that was given millions of euros which went to nobody knows where and that all this was done with the intention of benefiting all those involved…”

This included the ministers who would “in an unexplained manner be guilty of laundering money that after all was the public’s money.”

“This is why it was of maximal importance that the law be followed in all its details and not practically exempt the complainants from a crucial aspect of the elements of the complaint and arrive at a conclusion with that indispensable element excluded.”

The fact that the majority of the allegations rested mostly on reporting or opinions by journalists or bloggers who themselves rely on sources who are not identified, did not help, said the judge.

A journalist or blogger can say that according to anonymous sources, he or she knows that something happened and this source provided a document without indication of the author, such as a report on due diligence, without saying who the author is and who for and which audit company, therefore concluding that the suspected person did so for that reason, the court noted.

“There is no form of control over opinions or conclusions that can be expressed by a journalist who bases his opinion on a secret source. This was why the magistrate had to ensure that all the requisites resulted as explained above,” chided the judge.

The decision by the magistrate to approve the holding of an inquiry was one made through the non-observance of legal provisions regulating the reporting of a crime to a person who is not the AG or a police officer, Grixti said. This shortcoming could not be said to be one of little import, rather it was one of maximum importance, said the court, as a consequence of which the same Magistrate could have never reached the conclusion that she reached.

The judge therefore revoked the magistrate’s decree.

The decision comes over six weeks after the Magistrate Claire Stafrace Zammit’s original order to start an inquiry. Mr. Justice Giovanni Grixti had in January 2019 blocked another inquiry ordered by another magistrate in that case into the Panama Papers scandal.