Robert Aquilina again asks magistrate to recuse herself from threats case

Robert Aquilina has asked Magistrate Nadine Lia to reconsider her refusal to recuse herself in a case where a man stands charged with threatening the Repubblika president.

The fresh application, signed by lawyer Jason Azzopardi, comes just two days after a judge ordered the same magistrate to recuse herself from presiding a separate case instituted by Repubblika over the state’s failure to prosecute senior Pilatus Bank officials.

In the Pilatus case, the magistrate had refused repeated requests for her recusal made by Repubblika in the light of her marital ties to the son of former prime minister Joseph Muscat’s personal lawyer.

Magistrate Lia is currently also presiding over criminal proceedings against Joseph Schembri, who is charged with inciting hatred against Aquilina by commenting on social media that Aquilina “deserved to be hanged from the nearest pole.” 

Aquilina had already asked the magistrate to recuse herself from hearing the criminal case but during the last sitting, held on 10 October, she rejected the request despite the prosecuting police inspector telling the court that he agreed with the parte civile’s request.

The case was then adjourned to January next year.

But in the light of the constitutional judgment handed down on 19 October by Mr Justice Ian Spiteri Bailey, Aquilina’s lawyer has once again asked the magistrate to recuse herself in the criminal proceedings.

In the application filed before the Court of Magistrates this morning, Azzopardi said that in the 19 October decision, the judge chose to believe Aquilina’s testimony and news reports about the sitting over the version of events dictated by the magistrate in a decree. 

The lawyer argued that the judge had also noted “particular hostility” towards Aquilina and Repubblika on the part of the magistrate, and had stated that they had been right to immediately request the recusal of the presiding magistrate, who ought to have done so immediately instead of turned down the request on three occasions. 

The First Hall of the Civil Court (Constitutional jurisdiction) noted that the presiding magistrate had used a different measure against Repubblika than that she had used in “at least four circumstances and other cases” where her recusal had been justified.

In that decision, the judge had also noted that the magistrate had dismissed as a “spontaneous incident” an episode in which her father in law had accosted Aquilina in Republic street for requesting the magistrate’s recusal. Aquilina had informed the court of this while under oath.

Lawyer Jason Azzopardi reminded the court that Aquilina had no legal remedy at his disposal that would ensure his personal safety and that of his family from the threats he regularly received due to his activism, except that of having recourse to the courts, whose impartiality he said he expected.

The application states that the threats Aquilna was receiving were of such a serious nature that international organisations had written to the Maltese authorities to express their concern about the situation. In recent months, human rights advocacy organisation Frontline Defenders had felt it necessary to provide security assistance to Aquilina and his family.

It was also pointed out that criminal proceedings were currently underway against a person who had not only threatened Aquilina, but had told the police that he had stalked his family’s movements.

It was “nonsensical and illogical, and certainly contrary to the interests of justice” that Aquilina would have to request protection from the same magistrate “whose very own father-in-law had verbally attacked him in public and just a few weeks ago, expecting him to shut up simply because Aquilina had dared request the recusal of the presiding magistrate.”

Azzopardi reminded the court that recusal was “not a favour and neither a courtesy towards one of the parties, but a duty of a member of the judiciary.”

He added that the Code of Ethics for the Judiciary states that “Members of the Judiciary shall not preside over a case in which they know there exists any one of the reasons for being challenged as provided for in the Code of Organisation and Civil Procedure or where there exists a manifest danger or prejudice to fair hearing: in all other cases they are bound not to abstain from their duty.” 

Azzopardi asked the court to reconsider its refusal of the previous recusal request and abstain from continuing to preside over the case in question, in order that justice be seen to be done.