Yorgen Fenech files constitutional case over trial judge's refusal to budge

A Constitutional case filed by Yorgen Fenech over the refusal by a judge to abstain from presiding his trial will continue in October.

Fenech is due to stand trial over complicity in the murder of journalist Daphne Caruana Galizia in 2017. He is facing life imprisonment.

After the abstention of the judge originally allocated to the trial, Mr Justice Aaron Bugeja, the President of the Republic – on the recommendation of the Chief Justice – had nominated Madame Justice Edwina Grima to preside Fenech’s trial by jury.

In a court filing on 26 August, Fenech’s lawyers had asked that this judge abstains from presiding the trial by jury in view of the fact that she might also have to co-preside an eventual appeal.

Grima had subsequently rejected the request that she abstain, ruling on September 1 that the request was “legally unsustainable.”

The next day, Fenech’s lawyers filed Constitutional proceedings against the Attorney General and the State Advocate.

The lawyers argued that the Attorney General, who issued the Bill of Indictment against Fenech, also “directly or indirectly” participated in the choice of judge, through a legal vetting procedure requested by the Acting Registrar of Courts.

The AG’s participation went contrary to the right to a fair hearing and natural justice, argued Fenech’s lawyers, who said he had no serenity in the choice of judge once the AG, who was asking for life imprisonment, had participated in her selection.

The judges who currently preside over the Criminal Court are Mr Justice Giovanni Grixti, Madame Justice Consuelo Scerri Herrera and Mr Justice Aaron Bugeja. Bugeja had abstained from hearing the case, as he had previously also carried out the ‘Egrant’ magisterial inquiry tasked with probing the alleged ownership of a secret Panama company by former prime minister Joseph Muscat.

Scerri Herrera would not be able to hear the appeal either, in view of the fact that she had immediately recused herself from conducting the magisterial inquiry into the murder, after the Caruana Galizia family had objected.

Meanwhile, Grixti was viewed with suspicion by “some,” said the lawyers, arguing that Grixti had been subjected to an “unprecedented attack” after the Caruana Galizia family lawyer Jason Azzopardi had submitted that Grixti had acquired a motor-yacht from Fenech’s father George in 2008, and was therefore unfit to preside over one of Fenech’s bail hearings.

“With the greatest respect, it is not acceptable and is manifestly prejudicial that because of these problems which in no way emanate from [Fenech], the Court of Criminal Appeal (superior jurisdiction) is dismantled.”

It was “unthinkable” that a judge inexperienced in criminal matters could oversee the operations of the most senior judge in the Court of Criminal Appeal, said the lawyers, arguing that this meant that Fenech could never have a fair hearing before that court in the “near-certain eventuality” that his case ends up before it.

Fenech’s lawyers, Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca, asked the First Hall of the Civil Court in its Constitutional jurisdiction to declare that the choice of Madam Justice Grima to preside his jury breached his fundamental rights to a fair trial.

The case will be heard by Madam Justice Anna Felice on October 12.