Judge rejects Repubblika’s request for removal of Magistrate Lia from Pilatus complaint

A judge has rejected NGO Repubblika’s constitutional case over Magistrate Nadine Lia’s refusal to recuse herself from the challenge case against the Police Commissioner over the police's failure to press charges against several Pilatus Bank officials.

In a sentence handed down on Friday morning, Madam Justice Audrey Demicoli noted that the challenge case could lead to criminal proceedings against third parties and not Repubblika itself. “Therefore, there is no breach of the group’s right to a fair hearing … [because] effectively, it will not lead to the group being placed in a worse or more advantageous position to that which it is in today.”

In response to this decision, President of Repubblika, Robert Aquilina, took to Facebook and wrote: “We are studying this sentence to take all the necessary steps to receive a fair hearing and for justice to be done.”

The challenge case against the Police Commissioner was filed by Repubblika in July accusing the police of not prosecuting Pilatus Bank officials despite the conclusions of a magisterial inquiry.’

The case was originally assigned to Magistrate Nadine Lia. Repubblika had asked that she recuse herself in view of her family ties to lawyer Pawlu Lia, who was Joseph Muscat’s lawyer. The magistrate refused, which led to the filing of a constitutional case asking for her removal. An interim measure had been granted, ordering the magistrate to desist from continuing to preside over the case.

Then Magistrate Claire Stafrace Zammit was assigned the case on 14 November. However, one day later Chief Justice, Mark Chetcuti, issued a directive referring to a decree by the Constitutional Court on 11 November in the case of Repubblika vs the State Advocate, where the court ordered the suspension of the decree given by the First Hall of the Courts for the case to be assigned to a new magistrate, as the assignment had not been formally concluded.

The Chief Justice revoked the assignment of Stafrace Zammit, to leave the issue of reassignment unprejudiced, as until a final decision is delivered by the Constitutional Court.

On Friday morning, the judge decided that Repubblika does not have a “victim status”, since the challenge proceedings it had placed were in the interest of the public and not private or personal interests. The outcome would not personally and/or privately affect any of the members within Repubblika.

It noted that Repubblika was set up for the interest of the public and not for the private and/or personal interests of its members. Also, this meant that the challenge proceedings were not tabled in the private and/or personal interest of Repubblika’s members, and that the outcome will not impinge on the private, personal or economic rights of the members.

Therefore, the judge ruled that Repubblika cannot be treated as a victim under the applicable dispositions of the Constitution and European Convention on Human Rights.

Even if, for the sake of the argument, the NGO were to qualify for victim status, the court explained, case law had established that one could not claim a human rights breach in proceedings that lead to criminal charges against third parties, as unless that case is tied to compensation for civil damages. In addition, cases filed in the public interest are not treated as proceedings dealing with civil rights.

The judge dismissed the case, ordering Repubblika to also bear the costs.

“This legal setback will not kill us. We’ve had a lot of legal setbacks in the last five years, but we’ve always found a way to get there”, Aquilina said.