Italian judiciary demotes prosecutor for lack of impartiality

The Superior Council of the Judiciary in Milan, Italy, has demoted Fabio 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.

A Milanese media outlet reported De Pasquale’s demotion on Thursday.

The OPL 245 saga, also referred to as the Malabu scandal, centres around $1.1 billion paid by oil giants, Shell and ENI, through the Nigerian government for the acquisition of the lucrative oil asset.

Malabu Oil and Gas Limited, a firm incorporated in Nigeria for the purpose of acquiring the OPL 245 asset, was first awarded the oil assets by the Sani Abacha regime’s petroleum minister, Dan Etete, under controversial circumstances in 1998.

In a chain of convoluted back-and-forth events, the assets were later transferred to oil giants, Shell and Italian Eni, after paying $1.1 billion based on a 2011 agreement brokered by the Nigerian government. Prosecutors in Nigeria and Italy alleged that a chunk of the money ended up in accounts controlled by Mr Etete and passed to Nigerian officials as bribes.

But an Italian court, in March 2021, acquitted Shell, Eni and their executives in relation to the Malabu scandal.

In November 2022, PREMIUM TIMES reported that an appeal court in Milan, Italy, rejected Nigeria’s $1.1 billion compensation request against Eni and Shell in civil proceedings relating to the controversial Malabu oil deal.

A Nigerian court also recently dismissed charges relating to the Malabu saga against a former Attorney-General of the Federation, Mohammed Adoke, who, on behalf of the Nigerian government helped to strike the 2011 settlement deal that led to the payment of $1.1 billion by Eni and Shell.

Complaints and verdict

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

In July 2021, Mr Adoke accused 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.

Deciding on the complaints against De Pasquale, 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 De Pasquale who represented the public prosecution in the Eni/Nigeria trial.

The trial ended with the acquittal of all the accused for not having committed the crime.

Also in Nigeria, Mr Adoke was discharged and acquitted after the prosecution admitted it lacked sufficient evidence linking him to the alleged crimes.

As part of the sanction, De Pasquale’s “semi-directive prosecuting functions, was not confirmed by the Superior Council of the Judiciary.

“On the other hand, the obstinacy demonstrated in all the places in which he was called upon to illustrate his actions is suitable to demonstrate” how “the conduct implemented” by De Pasquale “far from being contingent and occasional, represents a modus operandi consolidated and intimately connected to his way of understanding the role held, therefore projecting a negative prognostic judgment on the possession of the prerequisites of impartiality and balance also for the purposes of confirmation”, in the magistrate in semi-managerial functions.”

During the disciplinary debate, it was recalled that it was not “the high professional profile of Doctor De Pasquale” that was called into question but “the issue of balance.”

There were four abstentions. The non-confirmation resolution was thus approved with 23 votes in favour.

Mr Adoke’s complaint

The Italian justice ministry had ordered a probe into the conduct of two prosecutors – Messrs De Pasquale and Spadaro in the Malabu suit involving energy groups Eni and Shell in Nigeria.

In Mr Adoke’s petition through his lawyer, Femi Oboro, he accused Messrs De Pasquale and Sergio of “unlawful interference with the administration and perversion of the course of Justice.”

“…the Public Prosecutors acted maliciously and unprofessionally to the detriment of our client despite the fact that he was not a direct party to the criminal prosecution and was not on trial before the Milanese Court,” the complaint against the two prosecutors which was addressed to the Italian ministry of justice said.

“Dr Sergio Spadaro commenced the exposition of the case for the prosecution by engaging in misleading interpretation and deliberate reconstruction of the role played by our client in his official position as the Attorney General of the Federation in the implementation of the Settlement Agreement of 30 November 2006 between the Federal Government of Nigeria (FGN) and Malabu Oil and Gas Limited which was the substratum of the OPL 245 Resolution Agreements of 2011.

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“Furthermore, it is obvious from the testimony that Dr. Sergio Spadaro was mischievously guiding the court to arrive at a predetermined conclusion by mischievously withholding critical information, facts and evidence that exonerate our client of the allegations of corrupt practices in respect of the OPL 245 Settlement Agreement,” Mr Adoke’s petition disclosed in 2021.

Background

The Malabu scandal involved the transfer of about $1.1 billion by Shell and ENI through the Nigerian government to accounts controlled by a former Nigerian petroleum minister, Dan Etete.

From accounts controlled by Mr Etete, about half the money ($520 million) went to accounts of companies controlled by Aliyu Abubakar, popularly known in Nigeria as the owner of AA oil

Anti-corruption investigators and activists suspect he fronted for top officials of the Goodluck Jonathan administration as well as officials of Shell and ENI.

The transaction was authorised in 2011 by Mr Jonathan through some of his cabinet ministers and the money was payment for OPL 245, one of Nigeria’s richest oil blocks.

The oil resources of the OPL 245 license have remained undeveloped since the controversies began.

Eni initiated international arbitration proceedings against Nigeria in September, alleging the government has breached its obligations by refusing to let the firm develop the license, which has now expired this May.

A Milan court in March 2021 acquitted the oil companies and their former executives of wrongdoings.

The prosecutors were accused of failing to file with the trial documents a video shot by a former Eni external lawyer, which they said was relevant to the case.