Judge refuses to recuse herself in Alfred Degiorgio case

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 to recuse herself.

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. In a court application Degiorgio called for her recusal.

Schembri Orland had refused what she termed a “vain and vexatious” request for the prevention of FBI testimony when she ruled on a request for an interim measure, pending the case proper. Two FBI agents went on to testify against the three men accused of the murder.

In his application filed by lawyer William Cuschieri, Degiorgio argued that Schembri Orland made "adverse comments", which necessitated her recusal or abstention from continuing to hear the case.

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, adding that the court could not decide serenely, dispassionately, independently and impartially on his client's case.

However, in her decree on the matter, handed down on Wednesday afternoon, Schembri Orland observed that a judge could be made to abstain only on a finite list of circumstances listed in the law. She noted that in other, exceptional, circumstances it could be right and fitting that the judge recuse 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 that supported her argument.

The judge said that it was presumed that the sitting judge "is neither partial nor corrupt and 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, she said. Quoting European case law, Schembri Orland said that the decisive matter was whether or not the fear of partiality could be objectively justified.

Cuschieri had argued that  the documents he had used to substantiate his request for the interim measure were the same as those he would use to argue the merits of the case, and feared that the judge would have already passed her judgment on the merits by passing those comments.

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 solely the request that it had before it in its parameters, where it was meant to analyse the elements of prima facie and irredeemability on the basis of the evidence brought forward by the applicant… it was the applicant who chose to rest solely on the decrees 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.