Two of the men accused of planting the bomb that killed Daphne Caruana Galizia have called on the courts to order the criminal inquiry to start afresh or for the magistrates’ court to hear all evidence it had failed to hear.
The Degiorgio brothers claimed that the Attorney General’s discretionary powers throughout the compilation of evidence effectively breached their rights.
Less than 24 hours since stirring up commotion in court on Thursday, brothers Alfred and George Degiorgio, charged alongside Vincent Muscat as the hitmen in the journalist’s murder, have taken fresh grievances before the constitutional courts.
In the closing stages of Thursday’s hearing in the compilation of evidence against the three men, the Degiorgio brothers loudly vented their frustration as soon as Magistrate Claire Stafrace Zammit read out a decree, turning down their request for additional recordings between murder suspect Yorgen Fenech and middleman Melvin Theuma, to be presented in evidence.
On Friday, the Degiorgios filed an application whereby they claimed that the magistrates’ court, conducting the criminal inquiry, was neither independent nor impartial since proceedings were effectively conducted according to the use “or rather abuse” of powers by the Attorney General.
Throughout the compilation of evidence, there had been a number of occasions when the AG had exercised his powers to block cross-examination of witnesses and the gathering of fresh evidence requested by the accused, so that the court’s hands were tied, the applicants claimed.
One of these was the request to summon Europol expert Mario Cmarec, which request was objected to by the AG arguing that the proper procedure for the summoning of a foreign witness had not been followed.
Another request had been to summon the German Federal Police to produce two laptops and three hard-drives in their possession.
That request, though upheld by the Criminal Court, was also defeated by the AG who, the very next day, had issued the bill of indictment against the alleged murderers.
That move effectively meant that the records of the case were transferred from the magistrates’ court, presiding over the compilation of evidence, to the Criminal Court that would eventually preside over the trial by jury.
And although that magistrates’ court had already fixed a date for the next hearing, it no longer had competence to handle the requests of the accused once the bill of indictment had been issued.
This showed how the AG exercised discretion in dictating proceedings before the court of criminal inquiry in such manner as to prejudice the rights of the accused.
A court that was subject to “the prosecutor’s discretion” could not be independent and impartial and could neither guarantee a fair hearing, the applicants argued.
Another request for a Vodafone representative to testify before the magistrate had been forwarded by the prosecution and the parte civile lawyers.
That request, though not objected to by the defence, had never been fulfilled, since the court had not decided upon it and the AG had proceeded with the bill of indictment irrespectively.
There had been other requests by the Degiorgios which had not been considered.
A second onsite visit at Bidnija was one such request, together with a call to determine all cell tower activity linked to particular towers on the day of the assassination back in October 2017.
The Degiorgios had also asked for a simulation exercise to be carried out so as to determine scientifically whether a text message could effectively turn on a bombing device.
But the day after those requests were made by the accused’s lawyer, the AG had issued the bill of indictment, stripping the magistrates’ court of the competence to decide upon such requests.
Besides being blocked by these discretionary powers of the AG, the defence lacked equality of arms since it had very limited possibility of putting forward evidence at the compilation stage.
In light of such considerations, the Degiorgios claimed that their right to a fair hearing was breached, and requested the First Hall, Civil Court to order the criminal inquiry to start afresh or to order the magistrates’ court to hear all that evidence which it had failed to do.
Lawyer William Cuschieri signed the application.