Opinion: How the court legitimised fraud

Labour MEP candidate Claudette Abela Baldacchino has been acquitted of fraud and misappropriation of funds – crimes that she was duty-bound to prevent as a public official.

Another five former mayors and councillors from both parties were also acquitted of the same charges.

Abela Baldacchino and her co-accused were indicted in January 2012.  It has taken over 12 years for Malta’s judicial system to reach its final decision, one as perverted as it is unbelievable.

OLAF, the EU anti-fraud office that initially brought the case, must be flabbergasted, first because of the eternity of the case and secondly because of its outcome.

Abela Baldacchino, while Qrendi deputy mayor, travelled to European destinations in business class as part of her local council work, funded by the European Commission.  But instead of claiming reimbursement for the actual price paid, she presented hand-written invoices indicating a higher price.

Together with her co-accused, she claimed €599 for flights which actually cost €466. The travel agency issued two separate invoices.  A computer-generated invoice recorded the actual price paid while a hand-written one recorded the full undiscounted price.

The scheme continued for so long that OLAF calculated that Abela Baldacchino and her co-accused defrauded the European Commission of €96,000.

OLAF learned of the abuse because of the large number of tickets issued, all for the same price of €599.

OLAF officers raided the Local Councils Association (LCA), seizing sales and purchase ledgers, bank statements, and e-mails. The travel agency KD Travel Services Ltd was also raided.

Abela Baldacchino and the others did not pocket the additional funds; the LCA did. But all were aware of what they were doing.  They were entitled to a refund of the actual price paid, not for the undiscounted ticket price.

Abela Baldacchino and the rest knew they were claiming far more than what was actually paid. There was no doubt this was a scheme intended to siphon more money from the EU Commission than was due.

Nobody in their right senses doubted that this was fraud, pure and simple. The case was clear-cut.

Yet the First Court took nine years to reach its decision.  It must have spent those years figuring out novel excuses to acquit the accused.

The court had all the evidence needed: invoices, e-mails, bank statements, witness statements.  All that OLAF work, all those raids, all those documents were worth nothing.

On 15 September 2021, Abela Baldacchino and her co-accused were cleared of fraud and misappropriation. Inexplicably, the court decided there was nothing wrong in stealing €96,000. It beggars belief.

Stunned by the bizarre court judgement, the police appealed. It took another three years for the Appeals court to reach its decision. Judge Aaron Bugeja, who shot to fame with his Egrant inquiry, reached the same bizarre conclusion –  Abela Baldacchino and her co-accused had done nothing wrong.

Read the judgement, tear your hair out, and despair at the contorted and circuitous arguments justifying his decision. You must wade through 14 pages of irrelevant legalese to get to the meat.

The bulk of the judgement explains that the Appeals Court doesn’t change the interpretation of the evidence considered by the First Court, doesn’t hear or decide the case from scratch, and that even if it doesn’t agree with the First Court, it still won’t change the conclusions reached.

The Judge was just preparing us for what was to come, quoting court decisions from 1957 and 1963 to justify his conclusion. More recent decisions by the Appeals Court contradict that argument.

So what were the Appeals Court’s excuses for acquitting? Abela Baldacchino and colleagues couldn’t be found guilty because they weren’t given clear explanations about how the reimbursement system worked.  So, does that justify presenting fake invoices?

Besides, the court argued that the defrauded cash was going to the LCA, and they needed the money.  So, does that justify cheating the European Commission?

“The Association and the councillors needed to see how to maximise their income potential for the Association to function and meet its (financial) obligations.  Anyway, a typical Maltese case of ‘Arte di Arrangiarsi‘ (the art of fudging it)”.  Believe it or not, those are the court’s exact words.

There were plenty more of the judge’s excuses on the accused’s behalf.  The LCA had asked for the advice of an auditor, and he didn’t point out any irregularities in the scheme.

The decisions were taken “within the context of the Association’s executive after due discussions.” So, because the auditor didn’t point it out, they couldn’t possibly figure out that it was wrong to present fake invoices and that they were cheating.

One of the funniest excuses was that the Maltese delegates “had adopted that modus operandi without any arguments.” According to the court, since there were no arguments, there was no crime.

Besides, the court argued, the Committee for the Regions hadn’t flagged any irregularities – probably because they hadn’t noticed they were being duped.

The court reasoned that since the accused were running their scheme openly, not in secret – in the cold light of day (fid-dawl tax-xemx) – there was no crime. So now, shooting somebody dead in public is no longer criminal?

There’s one final excuse that takes the biscuit. The accounts were tabled in parliament and nobody there raised any concerns about irregularities, the court noted.  “On the contrary, there were even words of praise for how the LCA operated”.

Apparently, being praised by MPs now exonerates you of all crime.  If that were the case we should stop wasting our time with the Steward Health Care prosecutions because Prime Minister Robert Abela dedicated speeches to praising the company to justify a scandalous deal.

“All these factors, therefore, led the accused to genuinely believe that their actions… were not in breach of the law,” the court concluded. That’s even more ludicrous. Is everybody who believes they haven’t committed a crime innocent?

No wonder it’s taken 12 years to come up with this final judgement. It’s priceless.