Court application error leads to heated argument

A crucial mistake of substance on a court application led to a heated argument between the defence counsel and the representative of the Attorney General in the case of former Khazak diplomat Rakhat Aliyev.

Dr Donatella Frendo Dimech, as Deputy Attorney General called for the nullification of the appeal as it was filed under the Court of Criminal Appeal instead of the Criminal Court as provided in terms of law.

Judge Michael Mallia, immediately noted that the application had the wrong court designation and informed the defence that the court he presided was not competent to hear the appeal.

He also held that he could not even hear any submissions as he did not have the necessary jurisdiction or competence.

The defence accepted the fact that the appeal was tabled under the wrong Court but held that this was a simple oversight which could be corrected.

"We have been dragging this case for months upon months and now we cannot accept that more time passes over a mere mistake", defence counsel Malcom Mifsud argued.

The Deputy AG, heavily opposed that the court accepts an amendment to be carried out and claimed that the whole case was a pattern of conduct in defiance of the applicable legal provisions and the court cannot allow this behaviour to go on any further.

The defence insisted that this is a sensitive case and the AG should address charges towards the accused and not level challenges of misbehaviour at the defence.

The Deputy AG contended that for both parties to be able to address the application this had to be filed before the appropriate court in the first place and not shove responsibility for errors of the defence on the court or on the prosecution.

The court underwent a moment of tension as both lawyers raised their voices to drive home their arguments. At this moment Judge Mallia rapped the parties for shouting in court and said that unless the lawyers calm down he will take measures to keep the court in order.

Dr Mifsud continued arguing that the most practical and legal move would be for the Judge to transfer the application for appeal to the Court of Criminal Justice and allow the proceedings to move on. The defence claimed that there exists a big probability that the case ends in front of the same judge anyway.

The bench reiterated it is not correct to say so and the appeal could very well be heard by another court.

Meanwhile the DAG argued that no allegations were raised against the defence but if one follows the case proceedings one notices that from the beginning the applicants had not followed the correct legal provisions and for the administration of justice to be meted out this had to be done in accordance to the applicable law.

The AG contended that the errors committed by the defence, which were not merely of nomenclature, could never be rectified because the court before which

they were being filed was itself not competent to hear the same submissions, hence the prosecution in adherence to law had no other alternative at law but to make the point, not withstanding that it was looking forward to having a confirmation rendered by the inferior court.

Judge Michael Mallia later decreed that the applicant's appeal was turned down.

In previous sittings, Magistrate Mizzi had said that procedures dictated that the application had to be presented under oath. This was not done, nor were affidavits from the bodyguards taken or presented at court.  

Based on the submission of the Kazak lawyers, the court could not conclude that there existed prima facie proof that Aliyev had committed crimes against humanity even if there could be suspicion that he had indeed committed crimes against the person. The court also stated that when the crimes were allegedly committed, they were not considered as a breach of Maltese law.

Aliyev is living in Malta under self-imposed exile as the husband of Shorazova, under the name Rakhat Shoraz. In April 2010 he left Austria in April 2010, where he had served as Kazakhstan's ambassador before his father-in-law stripped him of his diplomatic immunity after he was sentenced in absentia to 20 years in prison by a Kazakh court, on charges of kidnapping bankers Zholdas Temiraliev and Aybar Khasenov. He had denied the charges and claimed he is a victim of the politically repressive state.