A lawyer for the Daphne Caruana Galizia family has accused the men charged with the journalist’s murder of creating "self-inflicted" problems to have their trial postponed.

Therese Comodini Cachia told a court this morning that constitutional proceedings filed by George and Alfred Degiorgio in which they claim their lawyers have insufficient time to prepare a defence, were intended to prevent them from standing trial.

Comodini Cachia is representing the Caruana Galizia family as parte civile in criminal proceedings against the Degiorgio brothers.

When the urgently-appointed constitutional case filed by the Degiorgios began this morning, presiding judge Madame Justice Audrey Demicoli invited legal aid lawyer Joseph Bonnici to give reasons for his request for an interim measure, which would cause the trial to be pushed back to a later date.

Bonnici asked to summon lawyer Simon Micallef Stafrace, one of the two legal aid lawyers given the task of representing the Degiorgios at the murder trial.

Micallef Stafrace confirmed that he, together with lawyer Martin Farrugia, had been appointed as legal aid counsel to the Degiorgios on the murder case. 

The lawyer had requested a copy of the case documentation and received 77,373 files in digital format, he said.

“Frankly, it is impossible to see all the material in the time I have. This is a case with technical aspects of certain importance... a technical expert may also have to be appointed by the legal aid agency,” Micallef Stafrace said.

Six months to study the case

“I am always going to provide the best defence I can, but there are time constraints which are not allowing me to do so,” the defence lawyer said, adding that since he received a copy of the case files on 3 September, he had been spending every day studying them until 9pm.

“There is a mass of information which had been in the prosecution’s hands for ages,” he said.

Asked by Bonnici as to how long he would need to prepare a defence, Micallef Stafrace replied that it would require at least six months.

The lawyer explained that he had been first advised of the possibility that he might need to represent the defendants in this case in August and was officially appointed on 2 September. 

Prosecutor Maurizio Cordina asked the lawyer whether the trial had already been postponed first in September, to allow the defendants time to find another lawyer. It had been postponed three times, confirmed Micallef Stafrace.

Comodini Cachia, one of the lawyers assisting the Caruana Galizia family, asked Micallef Stafrace to confirm that the accused had refused to be assisted by legal aid. 

“They had refused as it wasn’t their choice,” he replied. The court had at one point also ruled that they were to conduct their own defence in court, he said, but confirmed that the situation on this issue was “confused” and unclear.

Legal aid lawyers have been engaged for criminal trials on a “just in case” basis, as a potential substitute legal counsel, before, he added, in reply to a question by Bonnici.

Defending themselves

Bonnici asked about the request by the accused to defend themselves.

“Frankly, they didn’t make the request themselves. The court told them, ‘look at the end of the day, you can also defend yourselves’…They continued to insist that whatever happens they wanted a lawyer of their choosing. In that context, the court told them that… there was the legal aid system and en passant said that you can also defend yourselves,” Micallef Stafrace testified.

Commodini Cachia suggested that one of the Degiorgio brothers had stood up in court and announced that he would defend himself.

The witness said that he recalled such an intervention being made by George Degiorgio, but was not sure whether it was Degiorgio or the court who had raised the issue first. He suggested that reference be made to the recordings of the sitting in question.

Next on the stand was legal aid lawyer Martin Farrugia, the second member of the Degiorgio defence team. “On 2 September I was appointed legal aid lawyer to Alfred Degiorgio and George Degiorgio in proceedings before the Criminal Court,” he said, confirming that he had filed an application, asking for more time to better prepare his defence.

Farrugia told the judge that he had received a pen drive a week after his appointment.

Of the volumes of evidence, Farrugia said that so far, he’d seen “circa 15,000 pages.”

Bonnici asked the witness how long, “according to his conscience,” he felt he needed to prepare for the trial.

“In my conscience, I require the same time as the prosecution had to prepare for this case,” was Farrugia’s optimistic reply.

“So, four years?” asked Assistant State Advocate Maurizio Cordina, half-jokingly. Farrugia repeated the request.

Interim measure

Bonnici was invited to make his arguments about his request for an interim measure to be granted.

He stressed that this case dealt with criminal law and that the accused had a right to the best possible defence. 

“Both lawyers have told us they are not prepared. “One told us he needs six months and the other told us he needs four years. That is up to the court, but they must make the best defence they can. If not, the accused’s right to an adequate legal defence would have been breached,” submitted the lawyer.

“What weapons do they have to defend themselves? The opposing counsel will make mincemeat of them.”

No justification for delaying trial

Assistant State Advocate Maurizio Cordina submitted that requests to halt ongoing cases are normally rejected by the courts and mentioned a number of cases where this had happened.

The prosecutor pointed out that Judge Demicoli had herself rejected a request for the delaying of a case, in last year’s extradition case against John Attard.

He stressed that European case law established the requirement of an “urgent and imminent danger” to justify delaying a trial.

Another one of these requirements was the lack of access to an ordinary legal remedy (constitutional proceedings being referred to as an ‘extraordinary remedy’ in legal parlance). In this case, the accused have the possibility of filing an appeal to their eventual sentence, he said.

Another requirement was the likelihood of irreparable and imminent harm, Cordina pointed out, before making reference to the timeline of proceedings against the accused men.

From 22 June, when the preliminary pleas were rejected, the court was obliged to ensure that this trial took place and had subsequently set a date.

In August, Alfred Degiorgio had filed another constitutional case, complaining about what he described as “prejudicial pre-trial publicity” surrounding his case and requested an interim measure, which would postpone his trial. That request was rejected by Mr Justice Grazio Merceica, said the lawyer.

Then, on 24 August, before the Criminal Court, the accused had informed the judge that they had been unable to find a lawyer willing to defend them. This gave the lie to their claim that they had no opportunity to build a defence, argued Cordina.

Two days later, on 26 August, the accused had informed the court of the possibility that they might reach an agreement with a lawyer to represent them, but this was subject to confirmation.

The case was adjourned to 31 August, with the court stating that if the accused failed to engage a lawyer by then, it would appoint legal aid lawyers to represent them. 

When that day came, the defendants again informed the court that they had not been successful in finding a lawyer and so the court had then appointed Simon Micallef Stafrace and Martin Farrugia to assist them at trial.

On 31 August, the trial date was also pushed back to a later date, Cordina said. 

The Criminal Code itself provides for an adequate time for the accused to prepare a defence in such a situation, he argued.

Section 433(6) established this period as being 20 days. This period had elapsed since their legal aid lawyers were appointed, Cordina submitted, arguing that this fact neutralised their claims of having been given insufficient time to prepare a defence.

On the issue of prejudicial pre-trial publicity, Cordina said that other proceedings initiated on this point by the Degiorgios were already underway, during which the presiding judge had also denied request for an interim measure.

Degiorgio had also been convicted of contempt of court, fined and jailed for causing unnecessary delays to the trial, added Cordina, concluding that the State had provided all possible opportunity to the accused in which to prepare a legal defence.

Not first attempt to delay

Lawyer Therese Comodini Cachia pointed out that these proceedings weren’t the first attempt by the defendants to delay their trial. “It is at least the third attempt and it is also the 12th constitutional case filed by one or both of the defendants,” she argued. “The Criminal Court had concluded in its decree on adjourning the trial, that it was very evident that this was an attempt to stultify the proceedings.”

The lawyer referred to recent decrees by the Court which had denounced the defendants’ attempts to escape justice.

Today’s attempt was also frivolous, she said, as the issues the Degiorgios were complaining about, could only be raised in a case they would file after the trial was concluded.

“None of the complaints can be decided today until the judicial process is over,” Comodini Cachia said, reminding the court that they had first refused to cooperate with their legal aid lawyers and then complained that their lawyers had not been given sufficient time to acquaint themselves with the acts of the case.

“ECJ jurisprudence establishes that the right to legal representation by a lawyer of your choosing is not an absolute one, as the interests of justice can merit that defendants be represented by lawyers other than those wanted by the accused, who would be appointed by the court,” said the lawyer.

“They themselves have declared that they had spoken to several lawyers, all of whom had refused the brief, which shows that they have been given the faculty of seeking legal assistance…,” she pointed out, adding that the fact that they had told the Criminal Court this obliges that court to appoint legal aid lawyers to defend them.

Number of pages and gigabytes irrelevant

Comodini Cachia also dismantled the Degiorgio’s second proposal, about the time required by the new lawyers to acquaint themselves with the case.

“Case law indicates that the number of pages and gigabytes to examine is irrelevant. What is relevant is whether, after the conclusion of the criminal process, your rights were breached by the process as a whole.”

This meant that the process must be concluded first, Comodini Cachia explained, arguing that the Degiorgio brothers’ complaint did not allow for the interim measure they themselves were requesting.

The lawyer said that the Degiorgios had been selective in quoting from judgments by the European court, and had omitted important circumstances which would have given context to the quoted passages. “It clearly emerges that such requests must be made before the Court of Criminal jurisdiction before being made before the Constitutional Court,” said Comodini Cachia.

“For every one of these complaints, there are ordinary remedies which can be raised before the Criminal court and later the Court of Criminal Appeal.”

In effect, the applicants were asking that the criminal proceedings don’t take place at all, submitted the lawyer.

Even the defence’s statement that there is a need for technical expertise, had to be made before the Criminal Court, she said. “You cannot, now, before this process, come here and ask that the proceedings before the Criminal Court don’t take place.”

She added that the prejudice complained of by the Degiorgios was reversible.

Negative media coverage

On the subject of negative media coverage, that complaint was “not only premature but procedurally abusive, because it is the subject of a case before Grazio Mercieca with a sitting for them to submit their evidence next week.” 

All this clearly indicated a lack of utilisation of the ordinary remedies available, concluded the lawyer.

Additionally, requesting the suspension of the proceedings meant that the Criminal Court would essentially be taking over the judge’s responsibilities.

“I would be saying to the judge ‘your handling of this case with regards to human rights and due process, I am now taking from you into my hands.’ “The responsibility of that judge is to ensure that the pre-trial process was conducted properly. If a date is imposed on the court, it would be taking over this responsibility.”

Turning her attention to the issues raised about the potential impact on the impartiality of jurors, Comodini Cachia referred to the cases against Bettino Craxi and that of Mustafa Kamal Mustafa. “One doesn’t even need to read the judgments in this case to know about the strong negative press surrounding them.

“This is not the case here, where we have impartial reporting of the proceedings and in recent months, further reporting being prompted by the applicants themselves.”

Craxi’s complaint had revolved around reporting which included a great deal of opinion, while in Mustafa’s, the argument was that jurors were prejudiced by media’s coverage of the 9-11 attacks, said the lawyer.

“In fact, in both cases the court noted there was reporting that could be prejudicial, but the European Court then looked at the instructions given to the jurors by the court and concluded that there was no breach of the right to a fair trial.”

These circumstances were not only self-inflicted, but indicated the intention to bring the proceedings to a halt, the court was told.

This showed a strategy by the applicants to prevent them from standing trial, the Caruana Galizia family lawyer submitted.

The case was adjourned for a decision on the request to Tuesday 11 October.  

Lawyer Joseph Bonnici is representing the Degiorgios as legal aid in the constitutional case.

Lawyers Carina Camilleri Testa and Maurizio Cordina appeared for the AG and the State Advocate, respectively.

Lawyer Vanessa Grech appeared on behalf of the Court Services Agency.

Lawyers Therese Comodini Cachia, Jason Azzopardi, Peter Cauana Galizia and Eve Borg Costanzi assisted the parte civile, the Caruana Galizia family.