Former Prime Minister Joseph Muscat's application claiming a breach of his right to a fair hearing during the hospitals concession magisterial inquiry has been rejected by the court.

Muscat was alleging a breach of his rights when the magisterial inquiry into the hospitals concession by Vitals and Steward was being carried out.

The judgment was delivered by Judge Giovanni Grixti on Friday morning.

In his application, Muscat argued his fundamental rights had been violated.

He stated that he had not been named as a suspect when the inquiry began in 2019, but said that investigative steps were still taken against him, including searches at his home and office, without being given the legal notifications and safeguards provided by law.

Muscat also challenged the decision of the inquiring magistrate, Gabriella Vella, not to recuse herself from the inquiry.

He argued that comments and social media activity by members of her family, related to the same subject matter of the inquiry, created a reasonable doubt as to her impartiality.

According to Muscat, all of this led to a loss of trust in the investigative process.

In a Facebook post after the decision, the former PM said he would be appealing the decision.

"I look forward to continue exposing the perverse way vindicative manoeuvres were carried out against myself and my family," he said.

Through his constitutional application, Muscat had put forward eight substantive claims.

Muscat had served as prime minister between March 2013 and January 2020, during which time his Cabinet signed off on a concession to privatise three public hospitals. Several years later, the NGO Repubblika requested the opening of a magisterial inquiry into alleged criminal wrongdoing linked to that concession. The initial request targeted four individuals. Muscat argued that he was not named as a suspect at that stage and was never notified of acts normally notified to suspected persons under Article 546(4A) of the Criminal Code.

In November 2021, following media reports that Muscat had received payments from a third-party company linked to the concessionaire Steward Healthcare, Repubblika submitted a new notitia criminis to the police commissioner alleging possible criminal conduct by Muscat and others.

Muscat said the payments were related to consultancy work carried out after he left office, all of which was declared with the tax authorities. The report was passed on to Magistrate Gabriella Vella, who was already presiding over the ongoing inquiry into the hospitals concession. Muscat argued that instead of being assigned to a different magistrate, the new report was retained by the magistrate and effectively merged into the existing inquiry.

On 19 January 2022, searches were ordered on Muscat's residence and office. In related proceedings, police representatives said that the search was carried out on the basis of indications available to the inquiring magistrate and that Muscat was being treated as a suspected person. Muscat argued that this demonstrated how a person may become a suspect during an inquiry without being afforded the safeguards available to those identified as suspects from the outset.

Muscat also challenged the magistrate's refusal to recuse herself. He argued that an inquiring magistrate is not a "court" in the strict sense and that questions of impartiality must be assessed under constitutional principles, convention standards, and judicial ethics. He referred to public statements and activism by close family members of the magistrate concerning the subject matter of the inquiry and alleged that he had repeatedly asked to testify and present evidence but was denied that opportunity until after his recusal request was rejected.

He sought a declaration that Article 546(4A) of the Criminal Code is unconstitutional or incompatible with the European Convention because it allegedly fails to provide adequate safeguards for persons who become suspects mid-inquiry and creates discriminatory treatment in breach of Articles 39 and 45 of the Constitution and Articles 6 and 14 of the Convention. He sought declarations that the failure to notify him of the November 2021 notitia criminis and the retention and merger of that report with the existing inquiry breached his fair-hearing rights.  

The court said that Article 546(4A) does not violate constitutional or Convention rights and does not create unlawful discrimination. It found no obligation of notification in the circumstances alleged and no illegality in the retention and consideration of the November 2021 notitia criminis.

The court also held that confidentiality of inquiry acts serves a legitimate purpose and does not breach fair-hearing rights. It found no constitutional defect in the recusal framework either.

The court concluded that a magisterial inquiry at the in genere stage is not an adversarial procedure and that the law does not grant a right to testify or to access inquiry acts while the investigation is ongoing.

Applying an objective test, the court found no evidence of bias or lack of impartiality on the part of Magistrate Gabriella Vella and no manifest danger or prejudice to Muscat's right to a fair hearing.

All eight substantive claims were dismissed.

In a reply dated 30 April 2024, the attorney general and the state advocate raised three preliminary objections. First, they argued that Muscat lacked sufficient juridical interest to bring the constitutional action. Second, they contended that the attorney general was not the proper defendant and lacked passive legitimacy. Third, they argued that the case was premature because the inquiry was still at an investigative stage and might never lead to criminal charges. They also submitted that the challenge to the disclosure provisions was premature because Muscat had been granted disclosure within the limits of the law and had not exhausted ordinary remedies.

The court rejected the first preliminary objection, holding that Muscat had sufficient juridical interest. It upheld the second preliminary objection, ruling that the attorney general was not the legitimate defendant and releasing it from the proceedings. The third preliminary objection was also rejected.

Costs were ordered against Joseph Muscat.