Unilateral powers granted to the Attorney General in certain aspects of criminal proceedings were far too unreasonable, giving rise to useless delay and stalling of court cases, a judge declared on Friday.

In a judgment delivered in a breach of rights claim filed by murder suspect Adrian Agius, Mr Justice Francesco Depasquale reserved some strongly-worded comments for the state prosecutor who, along with the State Advocate, were respondents in the case.

Proceedings kicked off last October when Agius, currently under preventive arrest since his arraignment in February 2021 over his alleged involvement in the 2015 murder of lawyer Carmel Chircop, claimed that his fundamental rights were breached by court decisions citing public disorder as the main reason for denying him bail.

The proceedings were filed against the State, as represented by the Attorney General and the State Advocate, tasked with handling criminal and civil cases respectively, as well as the registrar of the criminal courts and tribunals. 

AG refusing to hand documents to State Advocate

Although the dual offices of the state put up a joint defence against the applicant’s claim, the court was informed on March 1 that the Attorney General was refusing to hand over documents from Agius’ criminal process to the State Advocate, who was handling pleas in the constitutional case. 

Such “stubbornness” on the part of the AG meant that the court itself was precluded from viewing such necessary documentation until Mr Justice Depasquale himself ordered the registrar of the criminal courts to produce some of the paperwork.

“It was truly unbelievable and incredible that in 2022 the AG could cling to such outdated procedural excuses to try to undermine the current proceedings by denying the State Advocate who, after all was appearing in the proceedings as ‘lawyer’ in the interests of the AG too,” started off Depasquale.

Such behaviour was similar to that of a person who engaged a lawyer and then refused to hand over important documentation to his attorney who was meant to defend him.

This was “certainly unbelievable, incredible and out of place”.

Such unilateral powers granted to the AG went “far beyond what could be considered as reasonable,” said the court, adding that these powers were causing “delays and useless stalling” of criminal proceedings.

The court voiced its “serious concern” about the AG’s behaviour in hope that in the near future legal amendments would be launched in a holistic manner so as to curb “such unlimited and indisputable prerogative of the AG”.

This would remedy the current situation by ensuring that “outdated procedures adopted solely to prolong and hinder criminal proceedings are completely done away with,” Depasquale finished off.

Bail denied in view of gravity of charges

The judge then shifted his focus to the merits of the claim at hand.

This rested mainly on the issue of public disorder, a subject that featured in other cases brought before the local courts, including constitutional proceedings filed by Daphne Caruana Galizia murder suspects Alfred and George Degiorgio as well as Yorgen Fenech. 

The court said that it shared the views expressed in those judgments which had observed that bail was not denied solely on the ground of public disorder but also in view of the gravity of the charges. 

In this case, the court could not help but observe that Agius was accused of the cold-blooded murder of Chircop, allegedly giving instructions and supporting the criminal organisation which executed that murder.

All three decrees delivered by the magistrates’ court denying Agius’ requests for bail, had focused on the gravity of those accusations, coupled with the notion of public disorder.

And in terms of the criminal code provision on bail, the magistrates’ court had every right to take into account “any other factor which appeared to be relevant”.

Release from preventive arrest was not automatic and the court had to assess whether the accused was in a position to abide by bail conditions.

Appeal to be filed

In this case, the charges were so serious that any court would have to weigh carefully all circumstances when deciding upon bail.

Denying bail was not to be viewed as breaching the accused’s right to personal freedom but the exercise of the court’s duty towards society in safeguarding public interest.

On the strength of records viewed by the court that public interest was “relevant and sufficient enough to justify interference with the applicant’s right to personal liberty,” concluded Depasquale, rejecting Agius’ claims. 

The applicants’ lawyers, Alfred Abela and Rene’ Darmanin, told Times of Malta that they would file an appeal. 

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