Yorgen Fenech wants judge recused

Lawyers for Yorgen Fenech have asked for the recusal of a judge of the Criminal Court from presiding over his trial, arguing that she is an appellate judge would also have to participate in any eventual appeal. 

After the abstention of the judge originally allocated to the trial, Mr Justice Aaron Bugeja, the President of the Republic – on the recommendation of the Chief Justice – had nominated Madame Justice Edwina Grima to preside Fenech’s trial by jury. 

Fenech, the Tumas magnate, is accused of masterminding the assassination of journalist Daphne Caruana Galizia. 

Fenech’s lawyers have claimed that the Attorney General, as the prosecutor who issued the Bill of Indictment against Fenech, participated in the choice of judge. 

Minutes attached to the notification of the judge’s choice were sent to Fenech’s lawyers, detailing the proceedings of a meeting convened between the President of the Republic, the Chief Justice and the Attorney General to legally vet a recommended candidate to preside over Fenech’s trial. 

“This means that… the choice of Madame Justice Edwina Grima is a joint one between the Attorney General and the parte civile and this goes against every sense of fair hearing and natural justice,” the lawyers said. 

“In these circumstances, the applicant has no serenity in the choice of Madame Justice Edwina Grima, once this took place with the direct and indirect intervention of the Attorney General who is asking that the applicant be sent to prison for life.” 

But Fenech’s lawyers have now pointed out that Madame Justice Grima is one of the two judges nominated by the President to make up the Court of Criminal Appeal, alongside the Chief Justice. 

Since being set up in 1967, the Court of Criminal Appeal (superior jurisdiction), has adopted the practice of having only the most senior judge preside over the court when the Chief Justice is unable to. 

Today the judges who preside over the Criminal Court are Mr Justice Giovanni Grixti, Madame Justice Consuelo Scerri Herrera and Mr Justice Aaron Bugeja. Bugeja had abstained from hearing the case, having previously also carried out the ‘Egrant’ magisterial inquiry tasked with probing the alleged ownership of a secret Panama company by former prime minister Joseph Muscat. 

Scerri Herrera would not be able to hear the appeal either, in view of the fact that she had immediately recused herself from conducting the magisterial inquiry into the murder, after the Caruana Galizia family had objected. 

On his part, Grixti was recently the subject of an “unprecedented attack” – Fenech’s lawyers are arguing – by one of the parte civile lawyers, the Nationalist MP Jason Azzopardi, and is viewed with suspicion by the Caruana Galizia family. Azzopardi had revealed that Grixti had in 2008 acquired a motor-yacht from Fenech’s father George, and that he was unfit to preside over the bail hearing for Yorgen Fenech. 

Fenech’s lawyers have submitted that it was unacceptable to “dismantle the Court of Criminal Appeal” by appointing one of these senior judges to preside over his trial. 

Fenech said he was preoccupied by the fact that the most senior judge in the Court of Criminal Appeal would decide – potentially in both trial and appeal stage – the merits of the issues raised before the Criminal Court, whilst the Court of Criminal Appeal would be divested of the representative that could give the strongest contribution in terms of legal and procedural knowledge. This, or be substituted by a judge with no experience in the Criminal Court. 

“It is unthinkable that a judge without experience in the Criminal Court can oversee the operation of the most senior judge nominated by (the President) in the Court of Criminal Appeal and this means that the applicant can never have a fair hearing before the Court of Criminal Appeal in the near-certain eventuality that this case ends up before that court.” 

The application concludes with a request that the judge abstain from hearing the case and recuse herself. 

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca signed the application.