Judge throws out ‘vexatious’ constitutional reference by Degiorgio brothers

The Degiorgio brothers have had a request for a Constitutional reference on the issue of their denial of bail, dismissed

Brothers Alfred and George Degiorgio, who are indicted for the murder of journalist Daphne Caruana Galizia, have had a request for a Constitutional reference on the issue of their denial of bail, dismissed as “vexatious” by a judge.

The Degiorgios stand accused of planting and detonating the car bomb, which claimed the life of the prominent critic of the government near her home in Bidnija in October 2017. A third man, Vincent Muscat, who was originally charged together with the Degiorgios, has since admitted the charges as part of a plea deal and has been sentenced to 15 years in prison. The court had been told that Muscat had helped police with information that could be used to prosecute third parties.

Business magnate Yorgen Fenech is facing separate proceedings and is accused of masterminding the assassination.

Eight previous requests for the Degiorgio brothers’ to be released on bail have been denied and they remain in preventive custody since their arraignment in December 2017.

After the last refusal, they had filed a request for the court to make a Constitutional reference, claiming their human rights had been breached by the court’s decision, as well as by their continued pre-trial detention.

In her latest decision on the Constitutional reference issue, Madame Justice Edwina Grima observed that the law regulating such references stated that when a request is made, the issue should be referred to the First Hall of the Civil Court in its Constitutional jurisdiction unless the court is of the opinion that the request is “frivolous or vexatious.”

Therefore, said the judge, she had no competence to deal with the merits and would only look into whether the request was made capriciously. Making reference to case law, she noted that the courts had previously defined “frivolous” as meaning “having no value, vain, lacking in seriousness, manifestly lacking in sense and therefore undeserving of some form of attention or consideration” and “vexatious” as meaning “lacking sufficient reasons and with the intent of annoying and irritating the other party.”

The court said that although the complaints raised by the Degiorgios could not be said to be frivolous, the fact that the merits had already been dealt with by the Constitutional Court last month rendered their request “entirely vexatious.”        

The impugned decree denying them bail had stated that the court “could never have peace of mind that the accused can provide the necessary guarantees required by law for the granting of bail,” something which defence lawyer William Cuschieri argued meant that they could never be released on bail.

The judge said that this interpretation was not correct, however, pointing out that the Criminal Court had made a decision on the request filed in March 2020, based on the prevailing situation at the time.

She highlighted the fact that in a decree handed down in October 2020, the court had stated that a “web of criminality” was involved in this case and that one of the applicants was also accused of the murder of lawyer Carmel Chircop. Information freely available in the public domain showed that the appellants themselves had implicated a government minister and third party in their application for a Presidential pardon.

“These are very worrying allegations that obviously must be investigated so that if there are other persons suspected of involvement in this chilling case and others, they will be charged in court.”

The court said that in the circumstances, it had no hesitation in concluding that, given the scale of the criminal activity involved, the risks of the accused putting pressure on other people was “real and high.”

“Cases of this scale and seriousness …continue to confirm the need for the government to provide much more resources to the courts so that justice can be done in a reasonable time and in the general interest. This apart from the fact that the procedure in how these cases and others are prosecuted before the criminal courts are antiquated and lead to unnecessary delays.”

“The legislator needs to stop dragging his feet on this matter and introduce radical amendments. The needs of today’s society are very different from those of the past, and the procedure which we still have is inadequate.”

The Degiorgios had also argued that the law did not provide them with equality of arms in that the Attorney General could appeal a bail decree before the Criminal Court, but the accused could not. The judge, however, pointed out that when the Court of Magistrates, as a court of compilation, denies a bail request, there is nothing stopping the accused from making a bail request to the Criminal Court every time the acts of the case are sent back to the Attorney General. There was no capping on how many times this could be done. Grima noted that they had, in fact, done so several times and that the requests were always considered and decided by that court.

This opportunity to ask the Criminal Court for bail in and of itself created a balance with the Attorney General’s faculty to appeal.

Likewise, the argument that the court of the first instance had erred when it didn’t find a breach of their rights did not hold water said the court, as the evidence showed that they had made several requests for bail before the Criminal Court and therefore the discrimination complained of by the applicants didn’t exist.

“The court cited extensively from the judgment of the Constitutional Court of the 27 October 2021 and this because from this same extensive text it is evident that all the complaints which the accused are raising again through their application today constitute a res judicata.”

The court, for these reasons, ruled the request filed by the Degiorgios as vexatious and denied it.