Court turns down plea by men accused of Daphne’s murder, orders case to proceed

A constitutional case filed by the men accused of the murder of Daphne Caruana Galizia, in which they argue that their human rights were breached, is set to continue after a judgment in parte relating to the argument raised by the AG and the Commissioner of Police about the non-exhaustion of ordinary remedies before resorting to a constitutional remedy.

In the constitutional case filed by Alfred Degiorgio, George Degiorgio and Vincent Muscat, they complained of breaches to their rights, saying their arrest and subsequent searches were all illegal under the Criminal Code.

They alleged that they were not shown a copy of the arrest warrant for 36 hours after their arrest; that they weren’t informed of the reasons for their arrest; that they likewise weren’t shown the search warrant; that during the search none of them were present; and that persons who weren’t police officers assisted in the car- rying out of the search and seizure of evidence.

The men were charged in October 2017 with the murder of Daphne Caruana Galizia and subsequently contested the legality of their arrest. The Court of Magistrates declared the arrest valid after hearing Inspector Keith Arnaud explain that the suspects had been informed they were under arrest and that they had been arraigned within the 48-hour period stipulated by the law. The accused had not filed for habeas corpus, a legal remedy in cases of illegal arrest.

Arnaud testified that there a single warrant had authorised the arrest and search of the accused, given to them at a late stage during the arrest. The accused had been given their rights and informed of the reasons for their arrest.

The Attorney General had argued, among other things, that the men had not exhausted their ordinary remedies before going down the constitutional route.

The decision of the court, presided by Madame Justice Lorraine Schembri Orland, is not on the merits of the case, but only on the AG’s allegation of non-exhaustion of ordinary remedies.

This had to be taken on a prima facie basis, she said, as if taken on the merits, it would mean that the court had already passed judgment on them.

The Degiorgios’ lawyer, William Cuschieri, argued that they had used their ordinary remedies in the first sitting, but that this was dismissed and the arrest was declared valid. But the fact that the objection didn’t have a favourable outcome took nothing away from the efficacy and effectiveness of that same ordinary remedy, said the court.

The Caruana Galizia family, as intervenors in the case, had insisted that if the court were to exercise its jurisdiction in this case, it would be usurping the jurisdiction of the ordinary courts, but the judge quoted the 1995 constitutional court decision in Philip Spiteri vs Sammy Meilaq in which it was held that when the subject of the case is complex in nature, and has a mixture of issues, some of which could be dealt with by the ordinary courts and some by constitutional means, then the constitutional remedy prevails.

The judge said that, at this preliminary and prima facie stage, she agreed that the courts of ordinary jurisdiction could not offer an effective remedy to that which is being requested by the applicants.

The court therefore turned down the preliminary plea and ordered the case to proceed.

Lawyer Victoria Buttigieg appeared on behalf of the AG, while lawyer William Cuschieri is appearing for the Degiorgio brothers and Muscat. Lawyer Peter Caruana Galizia is appearing for the Caruana Galizia family.