NGO Repubblika has appealed to Justice Minister Jonathan Attard to, after ten years of feet-dragging, issue regulations allowing electronic testimony from witnesses who do not reside in Malta.
In a statement on Wednesday, Repubblika also questioned whether there is a “hidden hand” working so that the case against former Prime Minister Joseph Muscat and “his friends” fails.
On Monday, in proceedings against former permanent secretaries Ronald Mizzi, Joseph Rapa and Alfred Camilleri, defence laywers said that if Jeremy Harbinson, a forensic expert who worked on the inquiry report, continues to refuse to appear for cross-examination, they will request that the report be declared inadmissible. Harbinson had previously sent the courts an affidavit via email in which he declared that the insights he has gained over the past seven years means that he will not return to Malta because he fears for his safety.
Repubblika said all institutions have a duty in the fight against corruption, even when the accused is Muscat.
It said that the defence of the accused is requesting the exclusion of the Harbinson Forensics expert report, which was part of the magisterial inquiry into the hospitals scandal.
"This is because, in a communication to the court, an individual from the company that authored the report has refused to come to Malta to testify. We assume that the defence believes that if this report is removed, the state's case against their clients will collapse," Repubblika said.
The NGO reminded that Article 399 of the Criminal Code says that where the testimony of a witness from a foreign authority is indispensably required, a rogatory letter for legal assistance should be used.
"We therefore expect the prosecution in this case to request the court to take this measure," it said.
Repubblika noted that the individual refusing to come to Malta to testify resides abroad.
Article 647A (1) of the Criminal Code specifically addresses this circumstance, it said.
"The law states that "the court may, if it deems appropriate, allow the recording on tape or video of any necessary testimony from a witness residing outside Malta, according to codes of practice that the Minister responsible for Justice may prescribe, with regulations," Repubblika said.
It said that this provision was introduced through amendments enacted by the Labour government in 2015 (Act VIII of 2015) and is entirely relevant to the current situation.
"However, this provision cannot be implemented by the Court because, after 10 years, the government has still not enacted the regulations required by law. This is unacceptable. Clearly, this failure is the responsibility of the government in general and Minister Jonathan Attard in particular," Repubblika said.
It said that the individual who must testify to confirm the report's contents has publicly stated that he fears for his safety if he comes to Malta.
"This threat is accompanied by a campaign in media close to the Labour Party, particularly those of the General Workers' Union, aimed at discrediting the witness, attributing bias to him, and increasing the intimidation he is facing," Repubblika said.
Repubblika said it has seen witnesses expressing fear before in criminal cases involving Joseph Muscat.
"The witness in the Pilatus Bank corruption case reported being threatened and fearing for her life. While we acknowledge that Muscat denies organising witness intimidation in cases against him, it is clear that the Attorney General and the Police Commissioner are not providing any security assurances to witnesses in a case that is supposed to be theirs," Repubblika said.
Instead, AG Victoria Buttigieg and Police Commissioner Angelo Gafà are leaving an important state witness's statement of fear unaddressed and unacted upon.
"We hope that the AG and the Police Commissioner fulfil their duty, act without interference from the Prime Minister, and do not seek to appease criminals," Repubblika said.