Yorgen Fenech is insisting that the appointment of Madam Justice Edwina Grima to preside over his trial breaches his fundamental right to a fair hearing.
Madam Justice Grima has already dismissed an application by Fenech’s lawyers requesting her to abstain from presiding over his upcoming trial. The judge was appointed to the case by the President, on the recommendation of the Chief Justice.
Fenech is pleading not guilty to complicity in the assassination of Daphne Caruana Galizia in 2017.
On September 1, the judge decreed that Fenech’s request for her to abstain was “erroneous” and concluded that “abstaining was a prerogative of the judge, not the parties.”
Fenech filed a new case the following day, requesting the constitutional courts to order Madam Justice Grima to abstain from presiding over his trial.
The grounds for his request are twofold.
AG involvement
The first concerns the attorney general’s involvement. The acting registrar of the law courts had asked the attorney general to handle the ‘legal vetting’ of the chief justice’s recommendation to assign the murder trial to Madam Justice Grima after Mr Justice Aaron Bugeja, originally appointed to preside over the case, had abstained.
Fenech’s lawyers are arguing that having the attorney general, who is seeking a life sentence for Fenech, take part “directly or indirectly” in the choice of judge is a “grave injustice and against every notion of fair hearing.”
The AG’s involvement in this process ran counter to natural justice and deprived Fenech of “all serenity” in respect of the choice of judge, his lawyers claimed.
Appeals court composition
Fenech’s second objection relates to an eventual appeal and the judges who would make up that court.
Madam Justice Grima would not be able to preside over proceedings at appeal stage as she would have presided over the initial trial.
The other three judges currently presiding over the Court of Criminal Appeal, in its superior jurisdiction, are Mr Justice Aaron Bugeja, Madam Justice Consuelo Scerri Herrera and Mr Justice Giovanni Grixti.
The first two have previously abstained from proceedings concerning Fenech, whereas Judge Grixti was not looked upon favourably “by some,” and had recently been targeted by “unprecedented attacks,” Fenech’s lawyers said, alluding to controversy over the judge’s 2008 purchase of a boat from Fenech’s father.
That purchase was revealed on social media one day after Judge Grixti presided over Fenech’s bail hearing on August 18. Caruana Galizia family lawyer Jason Azzopardi then flagged it to the Chief Justice.
Bail was ultimately refused.
In light of such circumstances and given the current composition of the Court of Criminal Appeal, that court was being dismantled and this was “not acceptable and manifestly prejudicial” argued Fenech’s lawyers.
Unless Judge Grima presided over the appeal, it was “unthinkable” to expect another judge, lacking experience in the Criminal Court, to review the functioning of “the most experienced member” of the criminal appeals court, Fenech’s lawyers have argued.
That too, amounted to a breach of Fenech’s right to a fair hearing, insisted his lawyers, calling for an adequate and effective remedy, including that of ordering Judge Grima to abstain from presiding over the trial.
A first hearing of this new case filed before the First Hall, Civil Court in its constitutional jurisdiction, is scheduled to take place before Madam Justice Anna Felice in October.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are assisting Fenech.