Malabu Saga: Court convicts two Italian prosecutors for withholding evidence in Eni-Shell case

An Italian court in Brescia has convicted two Milan prosecutors, Fabio De Pasquale and Sergio Spadaro, over charges arising from their conduct in the trial of oil giants, Shell and Eni, regarding the Malabu Oil saga in Nigeria, Ansa English reported.

The court, on Tuesday, handed down an eight-month suspended sentence to the prosecutors after finding them guilty of charges of refusal to perform a duty by withholding documents that could have better helped the defence of Shell and Eni, which were eventually acquitted in the trial. Shell, Eni and their managers were acquitted in the Malabu case by an Italian court in Milan in March 2021.

The Brescia court presided over by judge Roberto Spanò, on Tuesday, found Messrs De Pasquale and Spadaro guilty of hiding vital documents that favoured the defence. It said the action of the prosecutors violated their legal obligations by withholding documents that could have strengthened the defence’s case.

The court said as public officials, the two prosecutors had a duty to ensure transparency in the judicial process by presenting all evidence, regardless of whether it supported the prosecution or the defence.

The prosecutors argued that the law did not specifically require the submission of the withheld documents, but the court found that the prosecutors’ actions infringed upon the defendants’ right to a fair trial.

Prosecutors had charged that executives of Eni and Shell involved in the Malabu deal knew that much of the $1.1 billion they deposited into an escrow account controlled by the Nigerian government would be disbursed as bribes.

The oil companies consistently denied any wrongdoing before their eventual acquittal.

In Nigeria, a former Attorney-General of the Federation and Minister of Justice, Mohammed, Adoke, who brokered the deal as the AGF, was in April acquitted of charges relating to the Malabu saga in March.

The Economic and Financial Crimes Commission (EFCC) had accused Mr Adoke of benefitting fraudulently from the Malabu deal he helped to broker as the then AGF in 2011. The settlement agreement was meant to cede ownership of OPL 245 to oil giants, Shell and Eni, after a decades-long battle over it.

The court cleared Mr Adoke in April on the grounds of EFCC’s failure to provide evidence to support the case.

Demotion of prosecutor

Prior to Tuesday’s conviction of the Milan prosecutors, Mr De Pasquale suffered demotion over his conduct in the Eni/Shell trial.

In May this year, following a series of complaints, the Superior Council of the Judiciary in Milan, Italy, demoted Mr De Pasquale, a deputy prosecutor at the Court of Milan, after he was found to have failed to exhibit impartiality in the long-running OPL245 corruption case involving energy groups Eni and Shell in Nigeria.

The Superior Council of the Judiciary is the body that allocates jurisdiction and guarantees the autonomy and independence of ordinary magistrates.

There had been complaints, including from Mr Adoke, about Fabio De Pasquale’s conduct in the handling of the case at the Italian Ministry of Justice.

In July 2021, Mr Adoke accused Mr De Pasquale and his colleague, Sergio Spadaro of “unlawful acts of intimidation/threat to life, forgery of documents” amongst others in the Malabu scandal trial.

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Deciding on the complaints, an assembly of the Superior Council of the Judiciary comprising magistrates said, “De Pasquale’s absence of the prerequisites of impartiality and balance is therefore demonstrated, having repeatedly exercised jurisdiction in a manner that was neither objective nor fair with respect to the parties as well as without a sense of proportion and without moderation.”

The grounds of the decision, taken by a majority with 23 votes in favour (4 abstentions), including that of the vice president of the Superior Council of the Judiciary, Fabio Pinelli, is the negative opinion on the actions of Mr De Pasquale who represented the public prosecution in the Eni/Nigeria trial.