A judge hearing a Constitutional case filed by one of the three men charged with the murder of journalist Daphne Caruana Galizia has rejected his request that she stand down.
Alfred Degiorgio is insisting that judge Lorraine Schembri Orland "went to the extreme" when she ruled that his request to stop FBI agents from testifying was frivolous and vexatious and had called for her recusal.
In a court application filed by lawyer William Cuschieri, Degiorgio argued that Madame Justice Lorraine Schembri Orland made "adverse comments", which necessitated her recusal or abstention from continuing to hear the case.
Schembri Orland had refused what she termed a "vain and vexatious" request for the prevention of FBI testimony. Two FBI agents went on to testify against the three men accused of murdering journalist Daphne Caruana Galizia last week.
Amongst the arguments made for the judge's recusal was the fact that the court "went to the extreme" of saying the request was frivolous and vexatious because it felt that the link between the motivation for Degiorgio's request and the evidence was "so stretched that it is lacking in the seriousness requested and expected in proceedings such as these".
This was a 'damning' pronouncement, Cuschieri argued. "The undersigned cannot understand how with these absolutely damning words, this court could ever decide serenely, dispassionately, independently and impartially on his case, which is based on these same documents."
In her decree on the matter, handed down this afternoon, judge Schembri Orland observed that a judge could be made to abstain only on finite list of circumstances which are listed in the law, however noting that in other, exceptional, circumstances it could be right and fitting that the judge recuse him or herself.
"The aphorism 'justice must not only be done but be seen to be done,' used by Degiorgio's lawyer must be evaluated according to the background of the particular case at hand, she said, citing Constitutional judgments which support her argument.
Furthermore, said the judge, it is presumed that the sitting judge is neither partial nor corrupt and that it was by duty, not simply by privilege or as a favour, that she must hear every case brought before her. The fact that the judge could decide whether or not to abstain did not render her a party to the case, as had been argued. Quoting European caselaw, she said that what was decisive is whether or not the fear of partiality could be objectively justified.
Cuschieri had argued that as the documents he had used to substantiate his request for the interim measure which would had prevented the FBI from testifying were the same as those on the merits of the case, he feared that the judge would have already also passed her judgment on its merits.
But the court, after scrutinizing the application and extracts from her decree dismissing the request for the interim measure, said it could not agree that the applicant's fear was objectively justified. "It is clear that this court addressed soley the request that it had before it in its parameters, where it was meant to analyse the elements of prima facie and irremediability on the basis of the evidence brought forward by the applicant...it was the applicant who chose to rest solely on the decrees and and could have, had he wanted to, brought other evidence to prove that his request was prima facie justified."
The judge also noted that the applicant had been "very selective" in the extracts he cited and quoted them out of context.
What the court had found "odious" was the fact that the applicant had invited the court to exercise its discretion lightly instead of on the basis of juridical principle - "an invitation which it rightly felt to be odious."
She pointed out that the court had taken no position on the merits of the case, which are distinct from the request for the interim measure and that the evidence had not even started being heard.
Finding a lack of the extreme situation required by law and both local and European jurisprudence, the court rejected the request as "unfounded in fact and at law."
Degiorgio, his brother George Degiorgio, known as iċ-Ċiniż, and Vince Muscat, il-Koħħu, are accused of murdering Caruana Galizia with a powerful car bomb on 16 October. The compilation of evidence against the three is still ongoing.
from The Malta Independent https://ift.tt/2L7lG9q
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