Lawyer’s move to Fenech’s defence team raised “glaring issues” of possible criminal liability – Omtzigt

Charles Mercieca’s crossing over from the Attorney General’s office to Yorgen Fenech’s defence team was harshly criticised by Special Rapporteur Pieter Omtzigt who called for an immediate investigation by the Maltese authorities before irreversible harm could be done.

In a strongly worded letter to Attorney General Peter Grech, Omtzigt said the lawyer’s actions raised “glaring issues” of professional ethics and potentially of criminal liability, which had to be investigated “rapidly and decisively”.

Mercieca hit the headlines last week after leaving his job as a lawyer at the Attorney General’s office, only to appear for Fenech in court 24 hours later as part of his legal defence team. Fenech is facing criminal charges for allegedly acting as the mastermind behind the assassination of journalist Daphne Caruana Galizia. Following Mercieca’s cross over, the Caruana Galizia family filed a formal complaint.

Omtzigt had investigated the state rule of law in Malta following Caruana Galizia’s murder and described Mercieca’s move as “disturbing”.

“The timing of this sequence of events indicates that Mercieca was in contact with Fenech and/ or his legal representatives whilst still employed by your office and had negotiated and agreed to the terms on which he would be retained by Fenech prior to tendering his resignation,” Omtzigt said.

One might also legitimately ask whether Mercieca had respected his duty of confidentiality during this process.

Omtzigt, who reports back to the Parliamentary Assembly of the Council of Europe, pointed out that Mercieca’s public LinkedIn profile stated that he completed his legal studies two years ago and then had been employed at the Attorney General’s office.

“This gives rise to a strong suspicion that he was only retained by Fenech because of his inside knowledge of the Office of the Attorney General. It is difficult to envisage what other advantage he could offer, as compared to the many established lawyers in Malta with far greater professional experience,” he said.

The letter referred to the statement issued by the Justice ministry saying that Mercieca was not involved in Caruana Galizia’s murder investigation or the proceedings against Fenech. Omtzigt pointed out that it did not exclude the possibility that Mercieca may have had access to the case files, whether or not he was authorised to do so.

Nor did it exclude the possibility that he was privy to other sensitive information, for example on evidence and strategy. “It would not be surprising if lawyers working on a case of such historical importance discussed it with colleagues whom they would assume to be trustworthy,” he said.

He also reminded the Attorney General that the 2014 Council of Europe’s Group of States Against Corruption (GRECO) report had told his office that “former prosecutors cannot engage in any post-employment activity which may cast doubts on their own integrity or that of the prosecutorial service… When discussing this matter during the on-site visit with the [GRECO Evaluation Team], the authorities admitted that it was not uncommon for former members of the AG office to join law firms later on. They themselves were of the view that this is an issue that they would like to see covered in a code of ethics for the prosecution service”.

If Mercieca had any useful information on the Caruana Galizia case, “irreversible harm could be done to the prosecution of not only Fenech” but also other suspects, whether already indicted or not yet charged, Omtzigt said.

This called for “immediate prophylactic action” to prevent any risk of this happening, assuming it was not already too late.

“After a period during which some progress seemed to have been made, it would be an unconscionable and unforgivable failure on the part of the Maltese authorities to allow Mercieca’s disloyalty to undermine this hugely important case,” Omtzigt said.

Also, Mercieca’s “abrupt defection” may also diminish public confidence in the Attorney General’s office and its ability to ensure confidentiality.

In his letter, he also called on the Attorney General’s office to provide him with specific answers to a list of questions regarding the case. Omtzigt asked Grech for his view on the compatibility of Mercieca’s actions with his office’s ethical standards, bearing in mind the position of the Maltese authorities in their discussions with GRECO.

He also called on the Attorney General to state whether the ethical standards allowed members of his office to negotiate the terms of their retention as a defence lawyer by a private client and whether they could prepare to act on behalf of someone prosecuted by his office, prior to tendering their resignation.

“Would this be considered a conflict of interest? What sanctions are available in case of breach of the ethical standards applicable to members of your office?” he asked.

Omtzigt queried whether there was any possibility that Mercieca had access – whether or not authorised – to any material held by or known to the Attorney General’s office that was of relevance to the Caruana Galizia murder case or Fenech’s prosecution. Was it possible that he discussed these with anyone who was directly involved in these cases?

“Do you personally consider that there is any risk that Mercieca’s actions, whether ethical or not, may harm your office’s prosecution of the Caruana Galizia murder case? What measures are available to you in order to prevent such harm from occurring?” Omtzigt said.

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