The Magistrates' Court yesterday referred the judges' complaint of a breach of human rights to the Civil Court but refused to stay proceedings pending a judgment on the constitutional reference.
Magistrate Tonio Micallef Trigona ruled that the judges' complaint that the prime minister had made statements asserting their guilt before they were tried could not be termed frivolous and vexatious and merited examination by the Civil Court in its constitutional jurisdiction.
The magistrate gave the ruling in the compilation of evidence against Judge Noel Arrigo, 52, of Siggiewi and Judge Patrick Vella, 58, of San Pawl tat-Targa, who are pleading not guilty to two counts of bribery and one of revealing official secrets in relation to a sentence handed down by the Court of Criminal Appeal against Mario Camilleri on July 5.
The charges are aggravated by the fact that they were public officers duty bound to prevent crime.
The compilation of evidence was scheduled to start last Wednesday but the sitting was taken up with a debate on whether the judges' complaint should be taken up as a constitutional reference.
Their lawyers claimed statements made by Prime Minister Eddie Fenech Adami had touched off a media frenzy and breached their fundamental human right to a fair trial by branding them guilty without awaiting the outcome of due process.
Magistrate Micallef Trigona however did not uphold the complaint against the media and dismissed it as frivolous and vexatious.
He remarked only that the right to freedom of expression was sanctioned as a fundamental human right in the constitution. This right did not extend beyond the laws of the country or the constitution.
In upholding the complaint against the prime minister, Magistrate Micallef Trigona cited from a 2000 European Court of Human Rights judgment, Daktaras v Lithuania, which states:
"...the presumption of innocence... is one of the elements of a fair criminal trial...
"It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law.
"It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty.
"Moreover the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.
"...the court emphasise(s) the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence.
"Nevertheless, whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made."
Magistrate Micallef Trigona said he was citing the judgment only to support his ruling that the claim was not frivolous and vexatious and the Civil Court would eventually go into the merits of the case.
Explaining why he did not feel he should stay the proceedings, the magistrate said he was aware that case law of the Constitutional Court seemed to favour a stay pending its decision but, on the other hand, the Constitutional Court had also expressed an opinion that the decision whether to stay proceedings or to continue with the hearings lay with the court deciding on the constitutional reference.
Moreover, where the law spoke of the compilation of evidence, it bound the hearings with a time limit, listed the specific circumstances which could lead to a stay in proceedings and did not include a constitutional reference as one of the circumstances.
Magistrate Micallef Trigona then signalled his readiness to start hearing evidence and the police commissioner took the witness stand, stepping down just over an hour later.
When he stepped down, the defence called on the court to stay the hearing pending an appeal they wished to file from the ruling given earlier.
The lawyers explained they wanted to appeal only on the court's decision not to stay proceedings.
But the prosecution objected to the request and declared that there was no right of appeal from the ruling.
Magistrate Micallef Trigona put off the case to Thursday for a debate on this new point.
The case continues.
Police Commissioner John Rizzo, Deputy Commissioner Joseph Cachia, Assistant Commissioner Michael Cassar and Superintendent Pierre Calleja are prosecuting.
Dr Joseph Giglio and Dr George Abela are representing Judge Arrigo while Dr Toni Abela, Dr Michael Sciriha and Dr George Cutajar are representing Judge Vella.