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AG defends decision to call for freeze of whistleblower’s assets
Attorney General defends decision to demand and withdraw the freezing of whistleblower’s assets who says OPM official breached private leased agreement.
21 January 2013, 12:00am
Miriam Dalli
Miriam Dalli
2 min read
Whistleblower Joe Borg.
The Attorney General has defended a decision to demand and withdraw the seizure of assets belonging to Joseph Borg, who stands charged of blackmailing and defaming Rita Schembri, head of the OPM's internal audit directorate, and a member of the OLAF supervisory board.
Borg was arrested in November for sending an email to Schembri, threatening her he would report her to OLAF, the EU's anti-fraud unit, if she did not pay outstanding dues to third parties who had sub-leased from Schembri the restaurant that Borg himself leased to Schembri.
The request for the freezing of assets was met with incredulity by defence lawyer Daniel Buttigieg, who claimed it was absurd and that it required a serious review. "I cannot understand this. It doesn't make sense. If it were for drug trafficking fine, I would... but surely not a case of defamation," Magistrate Anthony Vella said on his part.
Vella said that if this was done "anybody charged of a crime could have his assets frozen."
But less than 24 hours later, the Office of the Attorney General withdrew the request. In a statement issued today, the AG said the withdrawal decision - originally made on 4 January - was based on an internal review within the Office of the Attorney General of the demand and of the facts and charges involved with due consideration also being given to the fact that the Court had failed to issue a temporary freezing order as provided by Article 23A.
"In the circumstances it was decided on a balance of all the facts and incidents of the case not to proceed with the particular demand," the AG said.
The Office of the Attorney General said there was nothing illegal or irregular in the making of the original request which was based on Article 23A of the Criminal Code, which authorises the requesting of the freezing of assets in any case where a person is charged with an offence carrying a penalty of at least one year imprisonment.
"It has to be pointed out that the freezing of assets is an important tool in the fight against crime and that it should not be considered as an extreme or very exceptional measure if that fight is to be taken seriously," the AG said.
He insisted that it was a measure that required immediate implementation to be effective given that the delay in issuing such an order grants the opportunity for the dissipation of the assets. Citing Article 23A, the Attorney General said the urgent nature of the order was evidenced by the "very strong wording" used.
"Apart from not granting the Court any discretion as to whether it may issue a freezing order, it imposes an obligation on the Court to temporarily freeze assets once a demand is made," the Office of the Attorney General added.
"The law also provides for safeguards for the accused by providing for a right of review of the order by the Criminal Court."
Miriam Dalli joined MaltaToday.com.mt in 2010 becoming assistant editor f...
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The AG after having recanted from his demand to freeze my assets is still adamant in prooving the allegations of blackmail and threat of which I am being accused.
Since when does any person who is a witness to fraudulent acts and requests the fraudster to redeem herself from past mischievious acts or else he shall have no option but to report her to the the authorities considered a threat. In my e-mail to Rita Schembri I never sought any personal gain; so where is the blackmail?
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23A. (1) In this article, unless the context otherwise requires:
"relevant offence" means any offence not being one of an
involuntary nature other than a crime under the Ordinances or
under the Act, liable to the punishment of imprisonment or of
detention for a term of more than one year;
"the Act" means the Prevention of Money Laundering Act;
Cap. 101.
Cap. 31.
"the Ordinances" means the Dangerous Drugs Ordinance and the
Medical and Kindred Professions Ordinance.
(2) Where a person is charged with a relevant offence the
provisions of article 5 of the Act shall apply mutatis mutandis and
the same provisions shall apply to any order made by the Court by
CRIMINAL CODE [CAP. 9. 17
virtue of this article as if it were an order made by the Court under
the said article 5 of the Act.
(3) Where the court does not proceed forthwith to make an
order as required under subarticle (2) the court shall forthwith
make a temporary freezing order having the same effect as an order
made under article 5 of the Act which temporary order shall remain
in force until such time as the court makes the order required by the
said subarticle.
(4) Where for any reason whatsoever the court denies a request
made by the prosecution for an order under subarticle (2) the
Attorney General may, within three working days from the date of
the court’s decision, apply to the Criminal Court to make the
required order and the provisions of article 5 of the Act shall apply
mutatis mutandis to the order made by the Criminal Court under
this subarticle as if were an order made by the court under the same
article 5. The temporary freezing order made under subarticle (3)
shall remain in force until the Criminal Court determines the
application.
(5) The person charged may within three working days from
the date of the making of the order under subarticle (2) apply to the
Criminal Court for the revocation of the order provided that the
order made under subarticle (2) shall remain in force unless
revoked by the Criminal Court.
