Judge finds no rights breach against Degiorgios after electronic tagging is refused

A constitutional court has denied a request to be electronically tagged and released on bail made by Alfred and George Degiorgio, the brothers accused of the murder of journalist Daphne Caruana Galizia.

The men have been in custody since their arrest in December 2017 and stand charged with murder and money laundering in separate proceedings.

They have made several requests to be granted bail but these have been consistently opposed by the Attorney General and rejected by the Courts of Magistrates and the Criminal Court.

Their lawyer William Cuschieri, argued that the State was to blame for not introducing a system of electronic tagging to enable surveillance of the accused, whilst creating a balance between the interests of the State, society in general and the accused.

Cuschieri argued that the refusal to grant bail constituted a breach of Article 5(3) of the European Convention on Human Rights  - the right to freedom and security, as well as a breach of their right to a fair trial because the AG alone has the right to appeal a decision on bail. He had also argued that such a decision was discriminatory under the Convention.

The First Hall of the Civil Court, in its Constitutional jurisdiction, noted that the accused were not only accused but indicted. It noted that one of their bail requests, before magistrate Joseph Mifsud, had been upheld but overturned on appeal to the Criminal Court. The pair had also been granted bail in separate money laundering proceedings, but could not make use of it as they remain in custody over the Caruana Galizia murder.

The AG insisted that the law cited by the men is there to prevent arbitrary arrest and that it goes on to say that a person can be remanded in custody if there is reasonable suspicion. He argued that they had been arrested upon such a reasonable suspicion and that their continuing detention is justified and permitted under the convention’s legal framework.

In a decision handed down earlier today, Madam Justice Joanne Vella Cuschieri, presiding the First Hall of the Civil Court, in its Constitutional jurisdiction observed that the applicants had made “very ample” use of the rights granted to them by law to make bail requests, although there was no right of appeal from a refusal of bail. “In fact, it emerges from the acts of the case that at least 8 requests were made in the acts of the homicide case, some of them filed the day after the previous application was rejected.”

The judge said that after examining the acts of the case and the applicable law, as well as the teachings of the European Court, she felt she must agree with the State Advocate’s position on the matter.

The European Court confirms that the right to a fair hearing does not necessarily include the right to appeal in every circumstance, said the court adding that although it was true that the law doesn’t provide for an appeal on bail decrees, this apparent imbalance is rectified by the right of the accused to file a bail application at any stage of the proceedings – as the accused had done.

It was important that the court take into account the wider procedural picture and not just the sub-article of the law cited by the applicants. “Therefore the complaint under Article 6 of the European Convention on Human Rights is not justified,” ruled the court.

The second complaint, that of discrimination, did not fall under any category of the exhaustive list provided in the Convention, said the court, adding that it was in agreement with the State Advocate’s submissions on the matter.

The court dismissed all the requests made by the Degiorgios, also ordering them to bear the costs of the case.