Legal 'anomaly' could soften penalty

Businessmen 'could get on with their lives as normal'

The punishments handed down to the first seven men convicted of defrauding the VAT Department may turn out to be even lighter than previously thought because of an "anomaly" in the law.

The men who pleaded guilty last week (the first of a group of 32) avoided prison and were given suspended sentences and fines, the highest of which was €700.

They were also given a perpetual general interdiction, which is commonly understood to mean that they lose their right to vote, hold public office, work with the government, buy or sell property and sign contracts.

But the only term listed in the Criminal Code is that that they lose the right to hold "any public office or employment". It also means the loss of the right to vote because it is specifically mentioned in the electoral law.

However, other than that, people who are not government employees, politicians or notaries are practically untouched by a general interdiction as given by the criminal court unless they are interested in running for political office, senior legal experts have confirmed.

It is only in the civil court that an interdiction includes the other terms that basically reduce a person's legal status to that of a minor.

Since the same wording is used in both the civil and criminal codes, the Ministry of Justice could not confirm what the interdiction imposed by the court really means in this case and said that "there is definitely an anomaly which may need to be addressed through a revision of the law".

Nonetheless, a number of prominent legal experts, who preferred not to be named, insisted that this was no anomaly because the interdictions issued by the civil and criminal courts are given for very different reasons and, therefore, had nothing to do with each other.

Even the defence lawyer of some of the men who pleaded guilty, Joseph Giglio, confirmed that this was the case, according to his interpretation of the Criminal Code.

The legal experts' argument is that in the civil court the interdiction is generally given to people who are not of sound mind or, as the law crudely puts it, "imbeciles". On the other hand, in the criminal court it is usually given to someone who has abused of public office in some way.

In fact, even the civil case the government said it would file against those involved in the VAT scam in a bid to get the money owed to the department, will not likely end up with a civil interdiction. In the civil court it is usually family members of people with dementia or other mental conditions that apply for interdiction to be given voluntarily for the person's own sake.

The sentence handed down in the case of the VAT scam confessions has infuriated many people who felt the punishments should have been much harsher, possibly including actual prison sentences.

Adding insult to injury, the "perpetual" interdiction can simply be overturned by the court on grounds of good behaviour and does not require a Presidential pardon for this to be done.

This means the businessmen who bribed the VAT department employees could get on with their lives as normal as long as they do not try to get a job with the government or contest an election, according to the senior legal experts.

Therefore, unless someone finds a way of arguing that the general interdiction given in the Criminal Code means the same as that of the Civil Code, the worst punishment given to the businessmen in the VAT bribery case would be the humiliation of being named and shamed. Meanwhile, the VAT Department employees will lose their job.

Opinions on judgment

Defence lawyer Joseph Giglio, who appeared for three of the seven men who pleaded guilty of bribery, has appealed for the media and the public to take into consideration all the facts before forming an opinion on the judgment.

When contacted, he lashed out at the media for not giving a balanced and complete picture of the circumstances of his clients' case, comparing the discussion on the case to that of a "gladiator's arena" that is encouraging people to call for blood without actually understanding what is going on in the arena.

He pointed out that his clients had received assessments by the VAT Department, which they were contesting. Since they did not pay this assessment the VAT Department claimed that they owed further "exorbitant" fines and penalties.

"Because they were in an exceptionally desperate position, a VAT employee conned them into believing that they could solve their problems by paying a smaller amount, which, in fact, was nothing more than a bribe," he said.

He added that the persons concerned paid back every single cent the department was owed and regularised their position.

"In one case an appeal filed from the ex officio presented was actually upheld," he said.

Dr Giglio added that his clients' testimonies could be required to implicate the masterminds behind this plan and argued that the judgments were "perfectly within the parameters of the law" and that the three individuals had fully cooperated with the investigating authorities.

He also argued that many media reports were disrespectful to the court because they gave the false impression that the judgment was a superficial one without due consideration being given in the circumstances.


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