Issue link: https://maltatoday.uberflip.com/i/1306522
4 maltatoday | WEDNESDAY • 4 NOVEMBER 2020 NEWS Yorgen Fenech's lawyers claim prejudicial pretrial publicity, Judge recuses herself MATTHEW AGIUS LAWYERS for Yorgen Fenech have claimed that "unilateral submissions" made during the public inquiry into the murder of Daphne Caruana Galizia could constitute prejudicial pretrial publicity. Fenech filed an urgent application in the acts of the Public Inquiry this morning, in which he explained that on 28 Octo- ber he had filed an application asking for access to all the testimony of the inquiry. The board had ordered that the oral sub- missions of the Caruana Galizia family be heard with regards the application. Fenech said it was a "very worrying" de- velopment, arguing that the parte civile (injured party) has no legal standing in the proceedings. Neither had he been notified with a reply to his application or the decree, unlike the Caruana Galizia family lawyers who ap- peared to have been notified and given a date for oral submissions. "The principles of equity and audi alteram partem (the hearing of both sides) seems to have es- caped everyone," noted Fenech's lawyers. In addition, it appeared from newspaper reports that the Caruana Galizia family had made submissions before the board and asked that Fenech's application be re- jected and that he be found guilty of con- tempt of court, he said. He had not been given the opportunity to respond to these requests, he added. All of these unilateral submissions were reported extensively, said the lawyers, arguing that this would create an imbal- ance in the mind of the public from whom eventual jurors would have to be selected. Fenech warned that he would be exer- cising all his remedies under the Consti- tution and the European Convention on Human Rights "as a logical consequence of the partial and prejudiced actions of this Board that seems to have lost all sense of what which a public inquiry should be…in order to truly be a Board of Public Inquiry and not a Board of Public Inqiu- sition." Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca are appearing for Fenech. Meanwhile, in the Criminal proceedings against Fenech, a judge has recused her- self from hearing an application due to her past enmity with Caruana Galizia. The lawyers had filed an application de- manding the proceedings resume and for middleman Melvin Theuma to return to the witness stand for cross-examination. The records of the compilation of ev- idence are currently in the possession of the Attorney General's office and the next date for hearing is scheduled for Decem- ber 2. Fenech's lawyers want to bring the date of the sitting forward and have requested the Criminal Court to order that the re- cords be sent back to the court of magis- trates for the case to continue. The application also requests Melvin Theuma be brought back to the witness stand for cross-examination. Theuma, the self-confessed middleman in the plot to assassinate Daphne Caruana Galizia, was found in a pool of blood in- side his Swieqi home the night before he was due to testify on July 22. Theuma was, for a time, in a critical con- dition caused by stab wounds which the police say appeared to be self-inflicted. Fenech's lawyers are also seeking to summon Johann Cremona, a business associate of Fenech's to the witness stand once again. Cremona had testified last June, at the end of which sitting the court had ordered that former police commissioner Law- rence Cutajar be formally investigated on allegations that he tipped off Theuma about his impending arrest. In today's application, Fenech's lawyers are also requesting all service provider mobile phone data gathered in the course of the investigations, as well as those voice recordings by Theuma which had been discovered this year. Additional evidence requested includes all phone taps in the possession of the prosecution, particularly those related to calls between Edwin Brincat il-Gojja and Cutajar, Theuma and Brincat as well as Theuma and former assistant police com- missioner Mario Tonna. Court experts appointed in July sitting to handle transcripts of recordings, are also to present their work. Prosecuting Inspector Kurt Zahra and a Vodafone representative also feature among those listed in the court application. The application was filed before the Criminal Court, presided over by Madam Justice Consuelo Scerri Herrera, who ab- stained. Judge recuses herself Madam Justice Consuelo Scerri Herrera decreed this morning that it was accepted in local and international jurisprudence that if, according to the usual subjective and objective criteria, a person adjudi- cating a case cannot be independent and impartial, or whose independence or im- partiality could be reasonably doubted in a particular case, then that person should abstain or recuse themselves. This was in homage to the principle of the Rule of Law, she said. The case will now be reassigned accord- ing to law. CONTINUED FROM PAGE 1 The PN said on Sunday that it al- lowed for Mercieca to defend his position, but he failed to do so. But despite the party's decision to oust him, Mercieca has gone ahead and submitted his nomination for the casual election. Mercieca will be vying for a seat on the 13th district, which was va- cated following MP Frederick Azz- opardi's death last month. Mercieca obtained 738 first count votes, but failed to get elected in the 2017 election. Candidates Censu Galea, Jason Zammit, Maria Portelli and Joseph Ellis have also submitted their nominations. In a statement, Mercieca said the decision to contest the election came out of respect to his voters. "No attack will shift my belief that the people's choice is sover- eign, and that one should respect the democratic process," he said. He also went on to say that no fact will alter his reputation. "High ethical standards should be demanded from everyone," his statement read. Casual election nominations closed yesterday. If elected, Mercieca is likely to sit as an independent MP, effectively depriving the PN of another parlia- mentary seat. 'The people's choice is sovereign, respect the democratic process' - Mercieca