Ta’ Maksar brothers Robert and Adrian Agius together with their associate Jamie Vella have filed an application in Malta’s highest courts, arguing that the man who named them to the police was given a pardon thanks to ministers who had every interest in protecting him.

In a constitutional application filed on Wednesday morning, the three men mounted a three-pronged challenge to criminal proceedings they are facing and claimed their right to a fair hearing is being breached.

Chief among their objections is the way in which Vincent Muscat il-Koħħu was given a presidential pardon, following a decision to that effect by Malta’s cabinet of ministers. 

They are arguing that some members of that cabinet had every interest in ensuring Muscat, rather than others, received a pardon as they wanted certain facts about the murder of journalist Daphne Caruana Galizia to remain undisclosed. 

Muscat was pardoned for the 2015 murder of Carmel Chircop and then admitted to being one of the hitmen who murdered Caruana Galizia. He is serving a 15-year sentence for that crime.

On the back of evidence provided by Muscat, Robert Agius and Vella stand accused of having supplied the bomb used to blow up Caruana Galizia in the October 2017 car explosion, allegedly triggered by one of the three hitmen, George Degiorgio.

Adrian Agius stands accused of commissioning the other murder of the lawyer who was gunned down in October 2015 inside a Birkirkara garage complex. Vella and Degiorgio are alleged to have carried out the hit, along with self-confessed hitman Vincent Muscat. 

Presidential pardon in favour of ‘Kohhu’ was a ‘determining’ factor to prosecute

In their application, the three accused men argued that cabinet – the executive branch of government – had interfered in a court matter when it recommended that Muscat be given a pardon. 

Lead investigator superintendent Keith Arnaud testified that police had not arraigned the Maksars and Vella earlier because they did not possess sufficient evidence to prosecute, they said. 

The two Agius brothers being driven to court for their arraignment.

But the scenario changed overnight once the Attorney General struck a plea bargain with Muscat who, shielded by the pardon green-lighted by Cabinet, named the Agius brothers and Vella as players in both murders, based on information he had obtained from third parties. 

The three men cited a 2013 Times of Malta article written by law professor Kevin Aquilina to buttress their point. 

In that article, Aquilina had argued that Malta’s system of granting pardons led to “complete interference by the executive in the workings of the courts”.

The cabinet did not hear what the applicants had to say, said the men’s lawyers.

Furthermore, a public inquiry into Caruana Galizia’s murder had held the government responsible for her death, they noted, and police investigations against members of the executive were still ongoing.

Lawyers for the men argued that cabinet wore “two hats” in the case: first as ministers bearing collective responsibility for the murder, and second as judges in deciding who received a pardon, based on what they had to say and whether that information affected any members of government. 

Such “serious doubts about the independence and impartiality of the workings of Cabinet” undermined the applicants’ right to a fair hearing, their lawyers claimed, much as Caruana Galizia’s heirs had successfully challenged the involvement of former deputy police commissioner Silvio Valletta in the murder investigations. 

Attorney General’s role in plea bargaining with Koħħu

Lawyers for the Agius brothers and Vella also argued in their application that the attorney general’s office “was controlled by the executive” and raised doubts about the 15-year sentence Muscat was given. 

Prosecutors had initially sought a life sentence and the maximum twelve terms of solitary confinement for Muscat, but agreed to him serving 15 years followign a plea bargain deal. 

Attorney General Victoria Buttigieg. Photo: DOI/Jason Borg

That plea deal was somewhat suspicious and “corrupt”, lawyers said, given the serious doubts raised about the attorney general’s independence.

They cited harsh criticism of that office made in the Caruana Galizia public inquiry report, most notably its alarm at the way in which former deputy AG and current attorney general Victoria Buttigieg had exchanged emails with the Electrogas power station consortium and said that the then-energy minister, Konrad Mizzi, could sign off on the deal without cabinet or parliament approval.

The public inquiry board had expressed alarm at evidence of the attorney general giving advice that led to parliament and cabinet being bypassed, saying that did not afford security that the office “is acting in the interest of the State rather than the government of the day.”

Abuse by the prosecution 

Adrian Agius is also contesting the way in which prosecutors have chosen to bundle the Chircop and Caruana Galizia proceedings together in one procedure.

Agius does not face any charges related to the Caruana Galizia murder, yet because of this decision by prosecutors, he must listen to hours of testimonies that are unrelated to his case, lawyers argued. 

Police at the site of one of the raids leading to the arrest of the Agius brothers and Vella. Photo: Jonathan Borg

Out of the 100 or so witnesses who had testified so far, only one-third of those were relevant to his charges, argued the lawyers.

Agius argued that the situation meant that his right to a fair hearing within a reasonable time was being breached even further.

In light of all this the applicants called upon the First Hall, Civil Court to declare that the actions of the Attorney General and the State Advocate were illegal and breached their rights.

They also requested cancellation of all effects stemming from such actions, along with compensation and any further remedies as the court deemed adequate.

Lawyers Alfred Abela and Rene’ Darmanin signed the application.