The Malta Independent 29 September 2022, Thursday
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Zenith directors demand compensation over lengthy criminal proceedings

Tuesday, 26 July 2022, 15:57 Last update: about 3 months ago

Lawyers acting on behalf of Zenith Finance and its directors have filed Constitutional proceedings, requesting compensation for damages they claim to have suffered as a result of the protracted compilation of evidence against them.

They attributed the delays to difficulties in engaging foreign technical experts, as a result of the Maltese justice system’s nosediving international reputation and through no fault of their own.

Zenith Finance Ltd and its directors, Matthew Pace and Lorraine Falzon filed a constitutional case earlier today, claiming to have suffered human rights breaches as a consequence of the resulting delays to the compilation of evidence against them, in which they are charged with money laundering.

In a court application filed before the First Hall of the Civil Court in its constitutional jurisdiction, the defendants’ lawyers Edward Gatt and Mark Vassallo, highlighted the fact that Pace’s phone had been seized in evidence upon his arrest in March 2021, but was yet to be unlocked and examined, much less returned.

A court expert had been appointed to extract the contents of the phone in November, but in a subsequent sitting, held months later, the expert had informed the court that he did not have the equipment needed to crack the phone’s access protection and as a result, he had approached a specialised company abroad which offered this service.

That company, the expert said, had refused to provide this service “because according to that company, there were a number of politically exposed persons in the Maltese courts who required enhanced due diligence.”

The defendants’ application states that this situation had persisted for months, despite protestations made by both the accused and the court. In a sitting held on 1 June, the expert had informed the court that he was unable to complete his assignment, saying he would be “stuck with the problem of fee administration. As an expert, I do not have the power to speak on behalf of the Court or any other entity. The law is clear, I am not in a position to carry out my duties.”

When the case continued on 6 July, the Attorney General insisted that the device had to be unlocked. This led the court to dictate a note, stating that it had been unable to find another expert willing to accept the job and requesting that it be furnished with a list of individuals eligible to be appointed as court experts in the field.

The court said it would only select another expert and ordered that the note be served on the AG and the Justice Ministry with the aim of expediting these proceedings.

Later on in that same sitting, under cross-examination by the defence lawyers, police inspector Ian Camilleri confirmed that the decision to issue the charges had been taken on the strength of evidence that was already in the hands of the police, that was deemed sufficient.

All of the evidence, bar the problematic mobile phone data extraction, had already been exhibited at that point, argued the lawyers, pointing out that it had been during the 6 July sitting that the prosecution had first mentioned a laptop belonging to Pace that also needed to be examined by an expert.

“One should not forget that these exhibits had been in the prosecution’s hands at least since the day of the arrest, that is, 20 March 2021. This means that a year and four months later, this mobile phone and laptop are still in the same state they had been in when they were taken from Matthew Pace,” argued the lawyers, describing the state of affairs as “deplorable and in breach of the right to a fair hearing within a reasonable time.”

“The lives of the accused were put on hold for months, as they waited for the authorities to find a solution to the problem they, alone, had created for themselves,” argued the defence, pointing to recent judgments in which the courts had harshly criticised the AG’s contribution to drawing out proceedings.

“In their confusion and zeal to prosecute the applicants (and not just prosecute, but charge under arrest with the Attorney General opposing their request for bail), the Attorney General and the Police didn’t even try to see the contents of the mobile phone, of such great importance to the prosecution, while the applicants had been under arrest.”

It was also pointed out that Pace had been released on police bail several times before his arraignment, yet the police had never attempted to examine the phone before pressing charges.

The lawyers went on to argue that, as the potential evidence which needed to be extracted from the device had not been identified by the prosecution, this meant it was being requested speculatively, as part of a “fishing expedition.”  It was pointed out that this view had also been taken by the First Hall of the Civil court in its recent decision on a similar claim made by Yorgen Fenech, who is indicted over the murder of Daphne Caruana Galizia.

“With all due respect, after arraigning someone, freezing their assets, and driving them into bankruptcy, coming here saying that the mobile phone is important as it could contain some conversation of relevance to this case shows contempt towards the court and constitutes, in the clearest manner, a breach of an accused person’s right to a fair hearing.”

The AG’s handling of the case had led to the dissolution of Zenith Finance, “a company previously worth over €20 million and which was now worth nothing,” and had led to Pace and Falzon suffering hardship, as well as breaching their right to peaceful enjoyment of their possessions, said the lawyers.

In the court application, the plaintiffs said they felt that constitutional proceedings were necessary now that the AG had clearly stated that the intention was to “persist down this path,” during the last sitting.

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