Magistrate recuses herself from compilation of evidence against Maksar brothers, Degiorgio, Vella

Magistrate Marse-Ann Farrugia has recused herself from hearing the compilation of evidence against the tal-Maksar brothers Adrian and Robert Agius, Jamie Vella and George Degiorgio, on the grounds that she had also been presiding the inquiries relating to some of the charges.

Magistrate Farrugia highlighted the fact that she was the inquiring magistrate into the murder of Carmel Chircop and had been involved in the inquiry in genere from the very beginning. The inquiry had not been concluded, with the magistrate working on it “till the day the accused were arraigned before the courts.”

In fact, the finding of drugs on the person of Adrian Agius in February 2021 also forms part of that inquiry, she said.

As a consequence of this, the first 9 charges against Degiorgio, Vella and Adrian Agius also form the merits of a pending inquiry in genere before the magistrate who was also assigned the compilation of evidence, said Farrugia.

Although it was not one of the reasons contemplated in the sections of the Criminal Code dealing with the abstention of a magistrate hearing the compilation of evidence, Farrugia said that it had been repeatedly held by the courts and the European Court of Human Rights that the reasons for abstention were not limited to those contemplated in ordinary law. The accused had a right, under the European Convention of Human Rights and the Constitution, to a fair hearing by an independent and impartial tribunal, said the magistrate, explaining that the concept of impartiality must be interpreted in the light of jurisprudence on this topic.

Farrugia pointed out that in the 1990 judgement in the case filed by Lorry Sant against the Commissioner of Police, the Constitutional Court had maintained that the magistrate who had conducted the inquiry and concluded that further criminal action was to be taken, could not then hear the compilation of evidence against the same accused.

“This magistrate would have received a report, led the investigation as he saw fit, with the singular aim of reaching the truth of what happened without interference and his powers under the Criminal Code are truly ample…Consequently when the magistrate starts the compilation of evidence he could not have the ‘tabula rasa’ (clean slate) that is expected of an adjudicator from the beginning.”

Farrugia quoted extensively from European Court rulings on the Maltese system of magisterial inquiries and compilations of evidence and how they impacted the fundamental human rights of the accused.

“The fact that the sitting magistrate has been conducting the inquiry into the murder of Chircop for over five years and naturally has a good knowledge of all the evidence gathered up till now, could cause a legitimate doubt in the eyes of [the accused] and an objective onlooker, as to whether the magistrate has a preformed opinion…”

Although the court expressed its preference to hearing the submissions of the parties in this regard, it said it was unable to do so as the parties do not have access to the inquiry case file, which is still open, “and are consequently unable to make useful submissions on the evidence collected in the inquiry.”