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A judge has denounced the “dictatorial procedures” adopted by the anti-money laundering watchdog, which investigates, prosecutes and fines its subjects “in flagrant breach” of their basic fundamental right to be tried by an autonomous and independent body.
Madam Justice Joanne Vella Cuschieri ruled that the procedures and administrative penalties imposed by the Financial Intelligence and Analysis Unit are unconstitutional and urged the State to address the law by setting up a truly independent body to take such decisions.
To this effect, she ordered that the Speaker of the House of Representatives be notified of the 112-page judgment.
This is the eighth decision of its kind concerning the FIAU. There are several other pending constitutional cases against the FIAU over this point of law, with the unit already having been found to act as prosecutor, judge, jury and executioner.
It is subject to more than 20 court cases alleging breach of companies’ constitutional rights, according to data provided to parliament by Finance Minister Clyde Caruana.
The latest case was brought by a Ta’ Xbiex-based financial services provider, N Trust, which was fined almost €95,000 by the FIAU in 2022 over a suspicious investment setup.
The company is owned by Claire and Kathleen Mizzi together with Antoine Naudi. It operates from the offices of law firm Naudi Mizzi & Associates. Its core business is the incorporation and administration of corporate structures.
Madam Justice Vella Cuschieri was particularly critical of the FIAU’s Compliance Monitoring Committee, which analyses the investigations carried out by FIAU officers, examines the alleged breaches and finally imposes a fine. According to the laws regulating the FIAU, the unit may impose administrative penalties not exceeding €5 million.
She noted that the committee is composed of the FIAU director, the deputy director, representatives from the FIAU’s supervision and enforcement sections, and the director for legal affairs – all FIAU employees who therefore lacked impartiality.
“It is clear that the committee that decided on the actions of the applicant company is not autonomous to the extent that it forms an integral part of the respondent body, made up of employees of the respondent body who have no security of tenure,” the court said.
It added: “The applicant company was not even given the minimum right to be present for the discussion or at least to know the basis of which procedure the body came to its conclusions. The lack of balance in this situation is very clear in the eyes of the court and the violation of its fundamental right for a proper hearing is glaring.”
The judge said the FIAU’s committee could never be seen as independent and impartial, especially since it is not a tribunal set up by law and it is the same unit that arbitrarily regulates its own procedures without ensuring equality of arms, a basic legal principle.
She noted that the preliminary report prepared by the FIAU is signed by the director, who then presides over the committee and then proceeds to sign its decision and the fine being imposed.
“All this is akin to a dictatorial procedure rather than a procedure where the right to a proper hearing of all parties is meant to prevail. The court understands the frustration of the claimant society and other entities like it who are facing these inappropriate procedures in a democratic society… and without respect for their fundamental rights,” the judge said.
The court lambasted the FIAU’s witnesses who she said seemed to hide behind EU regulations and guidelines given to them by institutions such as the European Bank Authority, MoneyVal and FATF to the detriment of people’s fundamental rights.
It was the State, she said, that decided to give all these investigative and judicial powers to the FIAU.
She suggested that the situation could easily be avoided in the future if the state were to change the law, providing for an autonomous and independent entity at the stage of consideration and decision, where subject persons could enjoy the protection of their rights, be afforded a fair hearing in respect of the principle of equality of arms.
The judge therefore upheld N Trust’s claim and ordered the annulment of the FIAU’s decision against it. She ordered that any reference to the company on the body’s website be removed and that the case against it does not resume before the State sets up an independent and autonomous body as was suggested.