Manuel Delia files constitutional challenge against ban on public discussions about Caruana Galizia murder

Manuel Delia has filed a constitutional case in a bid to challenge the Criminal Court’s ban on “writings, declarations or public discussions” about the murder of Daphne Caruana Galizia.

This emerges from a court application filed on Friday by lawyers Eve Borg Costanzi and Matthew Cutajar on behalf of Delia in which the First Hall in its Constitutional jurisdiction is asked to declare the ban breached Delia’s constitutional right to freedom of expression.

The constitutional action requests redress, both in the form of monetary compensation, as well as revocation of the ban and declaring it to be null and void.

Back in September, the Criminal Court had prohibited the publication, until the end of court proceedings, of “writings, whether printed or not, and declarations or public discussions on the broadcast media and social media, on the crime and the person accused of the crime”.

The ban covers not only the murder of Daphne Caruana Galizia but also anything to do with Yorgen Fenech, who is awaiting trial, accusd of having commissioned the assassination.

Madam Justice Edwina Grima had issued the ban in the wake of a series of incidents where evidence which had already been declared inadmissible, appeared to have been leaked from the acts of the criminal case against Fenech and made public, in violation of multiple court decrees.

READ ALSO: Manuel Delia challenges gag order on Daphne Caruana Galizia murder discussions

In her September decree, the judge said the ban was necessary because “there are still people who evidently feel that they can breach court orders with impunity, who think they have a right to say whatever they want to, while paying no heed to the serious consequences of their actions.”

“This is done under the pretext of freedom of expression, which right should not serve as a hindrance to the right to a fair trial in every judicial process,” the judge had said.

Delia’s constitutional application stresses the “chilling effect” which the brutal murder of a journalist who had been revealing political corruption had on press freedom, both locally and abroad, as was evidenced by the international news coverage of the story.

“To the present day, almost seven years after her assassination, justice has not been done; not for her murder… and much less for the stories which she published or those published after her death by Forbidden Stories, a group of 45 journalists who had continued Daphne Caruana Galizia’s [unfinished] investigations.”

The application points out that presently, hitmen Alfred Degiorgio, George Degiorgio and Vincent Muscat are all serving prison sentences after they admitted to having carried out the murder, and a fourth man, Melvin Theuma, had been granted a pardon after he too, admitted to his involvement as a middleman in the murder.

“Besides these, criminal proceedings are also ongoing against Jamie Vella, Robert Agius and Yorgen Fenech, for their different roles in the murder in question,” the application reads, going on to remind the court that the proceedings against Fenech had started after he was arrested in November 2019 while attempting to leave Malta on his yacht.

“As soon as he was arrested, Fenech had requested a Presidential Pardon…[a] fact that was reported in several newspapers, both local and international…” reads Delia’s constitutional application, going on to stress that after his pardon request was refused, Fenech had filed a sworn application for judicial review of the decision in court, as well as a separate constitutional case.

Fenech’s two unsuccessful requests for a pardon had also emerged from his testimony in open court, which had also been widely reported in the press.

“Therefore, as it is a well-known state of fact in the public domain that Yorgen Fenech had requested a Presidential pardon after his arrest, [Delia] had made mention of this fact in a video blog published on Newz.mt’s Facebook page on 5 September 2024.”

When the Criminal Court ordered the website to take down the video, Delia had filed a court application, asking the judge to reconsider the ban. The request was denied without explanation by the court, which Delia argued, had not granted him an audience to explain his reasons.

The ban had been issued without any discussions with the complainant, or the prosecution, or any other party affected by the decree, argued Delia’s lawyers, who added that the judge had at no point attempted to strike a balance between the right to freedom of expression with the right to a fair trial.

In issuing the ban, the court had not evaluated the danger to Fenech’s fair trial rights, “much less minimised it,” argued Delia’s lawyers.

Instead of choosing the path of least interference with the right to freedom of expression, they said, the Criminal Court had done “precisely the opposite and restricted every form of discussion and declaration about the crime in the press and social media until the conclusion of the trial.”

This meant that the measure imposed by the Criminal court was disproportionate in comparison to its intended aims, the lawyers argued, asking the First Hall to declare the order to be in breach of the right to freedom of expression and overturn it.