Brothers Alfred and George Degiorgio, two of the three men accused of carrying out the murder of Daphne Caruana Galizia, have demanded that the compilation of evidence against them be restarted, claiming that the Magistrate presiding their compilation of evidence "has her hands tied" and is being dictated to by the Attorney General.

In a Constitutional application filed this morning by lawyer William Cuschieri, the First Hall of the Civil Court in its Constitutional jurisdiction is asked to declare that the Degiorgios' right to a fair hearing has been breached by the court's apparent lack of freedom and the wide discretion afforded by law to the AG in the proceedings. The accused men demanded that "either the acts of the compilation of evidence against the plaintiffs be deleted and restarted from the beginning, or alternatively the acts of the compilation of evidence be sent back before the compiling court to hear every evidence which it had not heard and to rule on every request for which no provision was made."

The Degiorgio brothers have been in preventive custody since their arrest in December 2017. They stand charged, together with Vincent Muscat, with the murder of Daphne Caruana Galizia in a bomb attack on her car that year.

They claim that while the evidence was still being heard by the court, the Attorney General had filed a bill of indictment against them. Quoting from Prof. Anthony Mamo's Notes on Criminal Procedure, their lawyer argues that before the filing of the indictment "the [AG] is not a party, but an authority independent of the Court of Inquiry and indeed, exercising a jurisdiction - as a general or chief magistrate - superior to that of that Court."

The compiling magistrate does not have sufficient discretion at law to regulate the gathering of evidence, said the lawyer. This discretion is wielded by the AG who is also the adversary of the defendants. On "more than one occasion the AG has used his powers to control what comes before the court to block Alfred Degiorgio from cross-examining and producing evidence in defence, as the compiling court is subordinate to the orders of the AG."

On 15 July 2019, the AG had blocked the cross-examination of FBI expert Mario Cmarec, said Cuschieri, by arguing that the wrong procedure had been used to summon the foreign witness.

The next day, the AG had presented the bill of indictment against the men, meaning that the acts of the case were sent to the Criminal Court. In so doing he "pulled the rug from under the feet of the compiling court" and blocked the cross-examination of Mario Cmarec, argued the lawyer. This meant that the AG had sufficient control over the proceedings to prejudice the rights of the plaintiff, it was explained.

This issue had been raised before the Criminal Court in a preliminary plea, but this was dismissed as there was no refusal to hear the witness.

The Degiorgios are also claiming to have been precluded from bringing evidence in their defence. In July 2019, Alfred Degiogio had requested the court summon officials from the German Federal Police (BKA) to testify about the two laptops and three hard drives in their possession, but this had also been blocked by the AG, he said.

"You cannot have a court which is subordinate to the discretion of the prosecutor...which is not allowed to do what it was ordered to by the Criminal Court, due to the actions (even if abusive) of the Attorney General."

3 other applications filed on 12 July 2019, requesting site visits and simulations of scenarios to confirm with empirical evidence whether a test message could truly be used to effectively detonate an explosive device, were replied to by the AG on 15 July - one day before the same AG filed the Bill of Indictment against the men, thereby precluding a ruling on this point.

The defence lawyer also alleged that during the compilation of evidence, on 3 May 2019, retired judge Michael Mallia had been appointed as a court expert and this appointment had been extended on 23 May 2019. However despite being nominated, the AG had not included Mallia's name as a witness in the notes of renvoi sent to the compiling court.

The court was therefore requested to declare that these constituted breaches of the Degiorgio's right to a fair hearing, safeguarded by the constitution and the European Convention on Human Rights.

Yesterday the brothers launched a tirade of abuse towards the prosecution and presiding magistrate, claiming that their fundamental human rights have been breached. The two were escorted out from the courtroom by prison staff still shouting.