The Vitals inquiry concluded on Thursday 24 April and was sent to the Attorney General’s office on 25 April, court registrar Franklin Calleja told a court on Tuesday.
Calleja was testifying before Magistrate Giovanni Grixti who is hearing a case brought by former Prime Minister Joseph Muscat.
Asked by Muscat’s lawyer Vince Galea to explain the mechanics of the process, the registrar said the proces verbal, after being exhibited in the registry, is sent together with all exhibits to the AG. Calleja said 78 boxes of evidence had been sent together with the inquiry.
The Attorney General must now assess the magisterial inquiry and decide whether to file criminal charges against anyone involved. Muscat could be one of those who could be indicted.
Tuesday's hearing is to deal with Muscat's request to take Magistrate Gabriella Vella off the inquiry into the Vitals case.
But after the testimony regarding the conclusion of the inquiry, Muscat's lawyers requested a copy of the report drawn up by the magistrate.
They argued that the AG has a document that is of great interest and relevance to Muscat who, they say, has a right to see it before continuing his case.
But the State Advocate rebutted that to get what he wants, Muscat wanted the court to order the AG to break the law. Muscat must file his request once the paperwork is deposited in the court registry, as per law.
Muscat’s lawyers said they’re pushing ahead with the bid to have the inquiring magistrate recused. After over an hour of legal arguments, the case was adjourned to 9 May.
The Vitals inquiry was launched after three hospitals were passed on to the private sector by the Joseph Muscat government in 2015. The deal was rescinded by the courts last year.
The magisterial inquiry was initiated at the request of NGO Repubblika in 2019.
It initially revolved around former Health Minister Konrad Mizzi and former Finance Minister Edward Scicluna, but was later widened to include also Muscat.
Muscat has been seeking to exclude Vella from continuing the magisterial inquiry for the past year.
In March he dropped an initial case to file another one, which is now before Mr Justice Grixti.
Over the past days Prime Minister Robert Abela denounced what he described as political terrorism, which has largely been seen as a reference to the inquiry conclusion close to the European Parliament and local council elections.
In court on Tuesday, Muscat's lawyer Galea asked Mr Justice Grixti to order the exhibition of the inquiry file in these proceedings, asking the judge to bear in mind “that the AG was also a party in this case.” The law gives the AG discretion to refuse him access to the inquiry, he added. “She hasn’t said that so far,” the judge shot back.
Muscat had not received the initial report of a crime and had not been indicated in it, Galea said. This, together with the fact that the Magistrate had refused Muscat's request that she recuse herself, all imbued Muscat with juridical interest in the inquiry, argued Galea, telling the court that unless the request was upheld, there would be a likelihood of a breach of fundamental rights.
The Constitution and ECHR both empowered the court to take action when a breach of fundamental rights is likely, he said. “So we cannot just wait for the court to decide and then order him to be returned to the position he was before the breach of rights took place.”
The lawyer also claimed inequality of arms. “I am currently in a position where I will have to make suppositions before the court while another party to the case, the AG, has a document in her possession which allows her to counter us without showing her hand… How can I prove details in the inquiry record without having seen it, but the other side has?”
Lawyer James D’Agostino, representing the State Advocate, replied that the law establishes a procedure in the law which gives the AG discretion to decide whether or not to grant a party’s request for access to the inquiry. It also set up a procedure for redress if the party felt aggrieved by that decision. Although the court had wide ranging powers, it still had to stay within the parameters established by the law, he said.
But Muscat’s lawyer asked that the disgraced former Prime Minister be returned to the position he had been in before the inquiry’s conclusion - which would necessitate the replacement of the inquiring magistrate and the inquiry starting afresh.
“If the court is convinced that there was a breach of rights, it must put the complainant in the position he had been in before the breach took place. You have to change the inquiring magistrate. You might say ‘what’s done is done,’ but…the court can take you back to any stage of the proceedings.”
He repeated that Muscat had not been mentioned in the initial report about the crime, but the Judge deftly replied that Muscat had simply become a person of interest in the inquiry at a late stage.
“The AG has powers and duties established by law, which is equal for all,” submitted the State Advocate, accusing Muscat’s lawyers of trying to “pull the rug” from beneath the court..“We cannot deviate from the law. From his arguments I understand that the applicant is expecting us to ignore the law, and is also questioning the authority of the court in Strasbourg.”
“If we were to act differently to the norms established by the European Court of Human Rights, then some local lawyer will pipe up and say we are breaching his fundamental rights. So it is wise that our courts follow legal doctrines established by Strasbourg.”
The conditions specified in the interim measure were clear and specific, D’Agostino said. “We cannot go beyond them, or we are risking affecting the case on the merits.”
The court, having heard the lengthy technical submissions on the requests for both requests, adjourned the proceedings to May 9, when it will issue its decree on the requests.