Manuel Delia challenges gag order on Daphne Caruana Galizia murder discussions

Manuel Delia has asked the Criminal Court to reconsider the blanket ban it imposed on public discussions about the assassination of Daphne Caruana Galizia and the person accused of commissioning it on broadcast and social media, in order to prevent f

By: independent.com.mt

Sep 30 2024
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Manuel Delia challenges gag or

This emerges from an application filed before the Criminal Court earlier today by lawyers Evelyn Borg Costanzi and Matthew Cutajar on Delia's behalf, in which it is argued that the prohibition imposed on the reporting of Fenech's unsuccessful attempt at obtaining a Presidential pardon was too wide in scope, unnecessary in a democratic country and breached the right to freedom of expression.

Fenech's 2019 pardon request, which had subsequently been rejected at Cabinet level, was a publicly known fact which had been subject to a great deal of media coverage at the time. This fact was highlighted in Delia's application to the court, which provides URLs to stories documenting it from MaltaToday, the Times of Malta, the Malta Independent and the Shift News.

Fenech had never tried to hide the fact that he had requested a pardon either, pointed out Delia's lawyers. In fact he had disclosed it himself in constitutional proceedings which he had filed in 2020, in which Fenech had contested the admissibility of Assistant Commissioner Keith Arnaud's notes as part of the evidence against him.

One of the grounds Fenech had raised in that case was that "the information had been provided to the police on a confidential basis with the aim of being given a presidential pardon..." Fenech had lost that case with the court ruling that the request was premature, in view of the fact that he was simultaneously making the same complaint to the Criminal Court as part of his preliminary pleas.

The accused himself had also filed a sworn application to begin separate court proceedings, in which he was requesting an administrative review of the decision to refuse his pardon request.

The lawyers argued that the order goes beyond the parameters imposed by the law, under which a court could ban reports on proceedings. While the law empowers courts of criminal jurisdiction to prohibit the publication of "writings, both printed and not, about the crime...of which the defendant is accused," in her decree, Madam Justice Edwina Grima had also prohibited "public declarations and discussions on broadcast media and social media."

This, Delia's lawyers said, meant that until Fenech's trial's start date, of which there is currently no indication, nobody could discuss or make declarations related to either the assassination of Daphne Caruana Galizia or to the person accused of that assassination.

It also meant that even facts which had been unequivocally established during other proceedings which have since been decided, and which were raised by the accused himself of his own accord, such as the pardon request, could not be reported on or discussed either.

"It is being respectfully submitted that the assassination of Daphne Caruana Galizia has enormous significance to democratic life in the country and the undersigned feels that any restrictions on discussing it could not but translate into a weakening of the fourth pillar of Malta's democracy, where not only does the media have the duty to deliver opinions, ideas and information about everything which could be in the public interest, but where the public also has the right to receive that information as laid out in article 10 of the European Convention of Human Rights and Fundamental Freedoms."

ECHR jurisprudence had established that a breach of fair hearing rights could not be declared in advance of the hearing itself because of negative publicity, said Delia's lawyers, "unless it amounts to a 'virulent press campaign' according to constant jurisprudence by the European Court - something which definitely does not exist in this case."

It was pointed out that jurisprudence had established that even in cases where a "virulent press campaign" had taken place, this does not necessarily always translate into a breach of fair hearing rights.

Delia also informed the court that he was one of the organisers of annual events which mark the anniversary of Caruana Galizia's murder, which are normally also broadcast and reported on by the Maltese, European and international press. He said the request for the lifting of the ban was also being made so as to ensure that the anniversary can be observed this October and that "those who wanted to campaign for justice to be done, both to Caruana Galizia as well as to her stories, are able to do so".