The Malta Independent 22 November 2019, Friday

Request for suspension of criminal proceedings pending outcome of separate case turned down

Wednesday, 16 October 2019, 17:24 Last update: about 2 months ago

The First Hall Civil Court in its Constitutional jurisdiction has decided not to grant an interim measure to the men accused of the murder of journalist Daphne Caruana Galizia that would have suspended the criminal proceedings against them until a separate court case, contesting wiretaps, is definitively concluded.

Earlier today, George Degiorgio’s lawyer William Cuschieri complained that, as a defence lawyer, he had no oversight of the wiretap evidence. He also complained that the Malta Security Services Act was unconstitutional. “The ECHR says that when an entity has absolute discretion to do what it wants, this is a breach of rights. You cannot even ask MSS questions which could potentially incriminate them.

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“If the intercept was incorrectly made under the law, they are precluded from using it.”

“Is it true that it wasn’t exhibited? Could it have been?” On a prima facie level that there was something that was not as it should be, he said. “I prefer to be cautious in this very serious case -  life imprisonment, it doesn’t get more serious than that. Until this case is heard well, the other cases should be suspended.”

Otherwise, the alleged killer’s trial would begin under a question mark, said the lawyer, denying that this was a delaying tactic. “You’ve arraigned me under such a serious charge and you don’t bring this evidence? The gravity is irreparable.”

But lawyer Victoria Buttigieg from the Attorney General’s office rebutted Cuschieri’s arguments, saying it was not true that the men were arrested because of the intercepts. “There was a large amount of evidence which puts them at the scene of the crime. This is a last-minute attempt to delay the jury. An interim measure for the FBI evidence, an interim measure for call logs…we’ve been going through this for the past nine cases,” she said.
At worst, the defence could request the expunging of the evidence objected to, Buttigieg said, “and not stop the Criminal Court because there is possibly something wrong. At first glance it appears completely frivolous.”

This was echoed by the Caruana Galizia family’s lawyer Jason Azzopardi, who said the ordinary remedy was the filing of preliminary pleas, which had been done. One of the preliminary pleas was the inadmissibility of certain evidence. “But then you use the extraordinary remedy in asking for interim measures. It is wrong to ask the Constitutional Court for a remedy which you could easily obtain from the Criminal Court or the Court of Criminal Appeal.”

He said the assertion that the arrests happened because of the intercepts was completely wrong. “There was evidence of a different nature.”

Cuschieri’s rejoinder attacked what he referred to as “Indiscriminate surveillance and joining of dots.” “In Malta we have a law that says the MSS can do what they want and listen in to the phone calls of anyone they like. I want George Degiorgio to be given what is rightly his. If the law is invalid, we must see what can be done.”

In a decision handed down at around 4:30pm this afternoon, Mr. Justice Toni Abela ruled that there did not appear to be a prima facie right to suspend the proceedings, observing that had the complaint been made at an earlier stage of the proceedings, it would have been resolved.

Such an action must be exercised at the ideal moment to avoid hampering the momentum of other proceedings, said the judge. The pending criminal case, after the issuing of the bill of indictment, was foreseeable and this complaint could have been raised at a much earlier stage of proceedings.

The judge also observed that only one of the three men accused of the murder had opted to contest the validity of the wiretaps. “The other two co-accused didn’t feel the need to make a similar application. In the opinion of this court, such a request also affects the interests of the other co-accused. In the absence of a similar application, the court cannot presume that they, too, wanted the criminal proceedings to stop as requested by the applicant. Therefore in its considerations, this court cannot not take into account the interests of the other co-accused.”

 

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