A man awaiting trial for a murder that took place in Gozo five years ago spent weeks in legal limbo as his case changed hands from one judge to another while his bail application languished before the courts.
Details about the curious case of Aleksandr Stojanovic, a 43-year-old Serb living in Safi, currently accused of the 2018 murder of Egyptian Walid Salah Abdel Motaleb Mohammed, emerged in court after his lawyers challenged the continued legality of his arrest.
After a month-and-a-half without any news about a bail application filed by the man’s defence, his lawyers filed a second bail application and then sought to jolt the courts out of their apparent inaction by attempting an alternative route.
Stojanovic’s lawyers filed an application for habeas corpus, a special procedure whereby the defence claim that the accused is being unlawfully detained since his arrest is illegal.
That legal manoeuvre worked.
On Friday, Stojanovic was escorted to court for a hearing before the Criminal Court presided over by Madam Justice Edwina Grima, as the last judge to be assigned the case - and consequently the upcoming murder trial - which had originally been assigned to Madam Justice Consuelo Scerri Herrera.
“Had we not filed the habeas corpus application, our client would have remained in limbo without a forum,” argued lawyer José Herrera.
An earlier request for bail had not been decreed upon while weeks lapsed without any reply, prompting Stojanovic’s lawyers to file a second application.
Registrar summoned to testify
The registrar of the criminal courts and tribunals was summoned to testify, with the defence seeking answers as to what had taken place behind the scenes when the case was assigned and re-assigned by the Chief Justice before finally ending up before Madam Justice Grima.
The first judge, Madam Justice Scerri Herrera, had abstained after her brother, former MP lawyer José Herrera, joined Stojanovic’s defence team.
The case was then assigned to Mr Justice Aaron Bugeja who, however, also abstained in April, the reason not emerging clearly when Franklin Calleja, the registrar, was questioned about it on Friday.
The Chief Justice then re-assigned the case to Madam Justice Audrey Demicoli in May.
However, last week the registrar was informed that there was to be another change.
That was when the case ended up before Madam Justice Grima who promptly scheduled a hearing to tackle the habeas corpus application and eventually Stojanovic’s request for bail.
The defence’s arguments were twofold.
In the first place, the accused had been in “legal limbo” for almost two months and secondly, the assignment of judges was not done in line with the procedure laid down under the Constitution.
Case delayed because of change in judges
“The issue of assignment of duties to members of the judiciary has always been a hot potato in this country. Unfortunately, there was a time when this was abused,” said Herrera.
“What does the assignment have to do with the [habeas corpus] issue of illegal arrest,” asked Grima.
“This case was delayed because of the selection of judges… With the case hopping from one judge to another, the bail application was left pending for one-and-a-half months. This is a most serious point,” stepped in defence lawyer Franco Debono.
As questions were answered by the court registrar, light was shed upon the procedure followed by courts’ administration in implementing the Chief Justice’s recommendation when selecting a judge to hear any particular case.
That recommendation, usually issued verbally, is put down in writing by the court registrar and that document is signed by the Chief Justice before it is forwarded to the President of Malta for final endorsement.
The administrative process used to include a communication of the Chief Justice’s recommendation to the Attorney General and Justice Minister.
But that step in the process, not envisaged by the Constitution, was done away with following a recent judgment by the Constitutional Court slamming the mistaken procedure that had triggered doubts about the selection of judge to preside the upcoming trial of Yorgen Fenech.
When Stojanovic’s case was re-assigned to Judge Bugeja under the old administrative procedure, the President had declared that he was relying on the advice of the “minister” rather than the Chief Justice, argued the defence, minuting that point.
Moreover, with regard to the other two assignments, it was not clear why the judges had abstained or simply were removed, nor did the original recommendation of the Chief Justice clearly emerge from the written records of the case, minuted Debono.
Attorney General lawyer Anthony Vella rebutted that the defence was challenging the operation of the courts’ administration rather than arguing why Stojanovic’s arrest was deemed illegal.
Bail request left pending for weeks
The accused’s bail request had been left pending for weeks, countered the defence.
“It’s obvious. That’s why we claim that the arrest is illegal. We had no alternative remedy… The accused had no forum… Hence why the habeas corpus,” stressed Debono.
But the prosecution insisted that issues stemming from the assignment of judicial duties were to be raised before the appropriate constitutional forum not the Criminal Court.
Moreover, since Stojanovic had been previously denied bail in terms of a valid court decree, his arrest could not be deemed illegal, argued AG lawyer Etienne Savona.
And the accused was no longer in legal limbo since the bill of indictment had been issued and the judge deciding the bail issue would also be the same one to preside over the trial.
“The arrest is illegal because [Stojanovic] has a right to file for bail and to have that request decided expeditiously. A first application was left in limbo and the second one is to be considered only because we filed the habeas corpus,” countered Herrera.
The “confusion” in the assignment of duties further “validated” the defence’s argument.
“This is not a frivolous argument but one that is fundamental to the due administration of justice,” stressed Herrera.
Madam Justice is expected to decree on the habeas corpus application in chambers.
Should the legality of the arrest be confirmed, the court will hear bail submissions at another hearing.
Francesca Zarb was also defence lawyer.