The case against the three men accused of murdering journalist Daphne Caruana Galizia took a new twist last week, when news emerged that Judge Aaron Bugeja, who was slated to preside over the trial of the three accused, recused himself from the case.
The reasons for Bugeja’s recusal are, thus far, unknown but the law, through Article 734 of the Code of Organisation and Civil Procedure, can shed some light as to what they could potentially have been.
The reasons which could lead to a judge’s abstention from a case are laid out in Article 734 of the Code of Organisation and Civil Procedure and are described in full below.
The first reason mentioned in this article is that a judge may be challenged or may abstain from sitting in a case if he is related by consanguinity or affinity in a direct line to any of the parties, or if he is related by consanguinity in the degree of brother, uncle or nephew, grand-uncle or grandnephew or cousin, to any of the parties, or if he is related by affinity in the degree of brother, uncle, or nephew, to any of the parties.
The judge being the tutor, curator, or presumptive heir of any of the parties; being the agent of any of the parties to the suit; being the administrator of any establishment or partnership involved in the suit; or having one of the parties as his presumptive heir is also deemed reason enough by law for the judge to be challenged or to abstain.
The law also opens the way for a challenge or abstention if the judge had given advice, pleaded or written on the cause or on any other matter connected therewith or dependent thereon; ; if he has made any disbursement in respect of the case; if he has given evidence or if any of the parties propose to call him as a witness; or if he had previously taken cognizance of the cause as a judge or arbitrator – provided that this shall not apply to any decision delivered by the judge which did not definitely dispose of the merits in issue or to any judgement of non-suit of the plaintiff.
Article 734 then lists a further three reasons which could lead to a challenge or abstention by a judge from a case. One such reason is if he or his spouse is directly or indirectly interested in the event of the suit, while another is if the advocate or legal procurator pleading before the judge is the son, daughter, spouse, ascendant, brother or sister of the said judge.
There can also be a challenge or abstention if the judge, or his spouse, has a case pending against any of the parties to the suit or if the judge happens to be a creditor or debtor in such a manner that the situation may reasonably give rise to a suspicion of a direct or indirect interest that may influence the outcome of the case.
Finally, Article 734 (2) denotes that a judge may be challenged or abstain from sitting in a cause when he has previously taken cognizance of and expressed himself on the same merits of that cause when sitting as a judge in the Court of voluntary jurisdiction.
Aaron Bugeja was promoted to judge from magistrate last April, and was handed the case last July after his name was drawn by lot. His appointment to preside the trial, despite its random nature, had drawn questions from civil society activists however.
As magistrate, Bugeja had led the investigations into the Egrant scandal, a story which was broken by Caruana Galizia where she alleged that Prime Minister Joseph Muscat’s wife Michelle was the owner of Egrant, a secret offshore company based in Panama, and had received a $1 million payment from the Azerbaijani ruling family. Ultimately, Bugeja’s 1,500 page magisterial inquiry, of which only a 53-page segment has been published, found no evidence linking the Muscat family to the Egrant company, which itself had been revealed in 2016 by the same Caruana Galizia in her reportage of the Panama Papers scandal – in which Tourism Minister Konrad Mizzi and Muscat’s chief of staff Keith Schembri were also embroiled.
Bugeja’s promotion to judge is also, as of yet, not set in stone due to the fact that it remains subject to a constitutional case wherein the NGO Repubblika are arguing that his promotion and those of five other members of the judiciary are invalid. If the case is upheld and the appointments are indeed deemed invalid, then all his actions would be hence nullified. In fact, Bugeja’s recusal came only days after an appeals court upheld Repubblika’s interest in the case, hence allowing it to continue.
Judge Edwina Grima, who has been a judge since 2014, has now been appointed to preside over the trial instead of Bugeja. She has since set 31 October as the date for preliminary hearings which will consider legal and procedural objections raised by the prosecution and by the lawyers for the three alleged of murdering Caruana Galizia. Following these hearings, a date will then be set for their trial.
