A former judge at the European Court of Human Rights has criticised the State’s “weak response” to the “treachery” of Charles Mercieca, the young lawyer who crossed over from the Office of the Attorney General to the legal defence team of Yorgen Fenech in the span of 24 hours.
The Shift turned to Judge Giovanni Bonello for his take on the latest developments in the murder investigation of journalist Daphne Caruana Galizia where Mercieca, son of the former Labour parliamentary secretary Franco Mercieca, left his job as a lawyer at the Attorney General’s Office to appear in court for Fenech the following day.
He did not mince his words.
“I must congratulate Charles Mercieca for achieving something I believed to be impossible. He managed to be shameless and shameful at the same time,” Judge Bonello told The Shift.
Fenech is being charged with being the mastermind behind Caruana Galizia’s assassination, which took place exactly 31 months ago today just a few metres away from her Bidnija home when a bomb placed under her car detonated on 16 October 2017.
Mercieca hit the headlines last week with his move, which led the Caruana Galizia family to call for an inquiry into the matter, saying the timing pointed to “prior collusion“.
“The implications for the Office of the Attorney General and for Malta’s already weak criminal justice system are serious,” they said in a statement.
The Justice Ministry replied by admitting that Mercieca’s move was “insensitive”, but added that it was informed he had never worked on the Caruana Galizia case.
This argument, according to Judge Bonello, is “wholly irrelevant”.
“It is a mistake, I believe, to allow this scandalous switch from prosecutor’s office to defence counsel to be turned into a debate into whether Mercieca had or had not formally or informally been involved in the Fenech case when still employed by the Attorney General’s Office,” he said.
Instead, what was really relevant was the fact that one day, Mercieca owed total loyalty to the State prosecuting Fenech and, the following day, he was working against yesterday’s employer.
“His new client, to whom he now owes total loyalty is the same Fenech who his principal, the State, was yesterday trying to convict,” Judge Bonello said.
Mercieca was previously on the payroll of the State that wanted to establish guilt, and he is now on the payroll of the State’s opponent who is trying to “thwart the State”. The lawyer had one foot in both camps – one called yesterday and the other called today, he added.
“The weak response of the State to this legal, ethical and professional treachery further undermines any credibility in the will of the State to really come clean in the Caruana Galizia assassination,” Judge Bonello said.
He has not been the only one to express this concern. Earlier, Special Rapporteur of the Parliamentary Assembly of the Council of Europe, Pieter Omtzigt, wrote a strongly worded letter to Attorney General Peter Grech saying Mercieca’s actions raised “glaring issues” of professional ethics and potentially of criminal liability. This had to be investigated “rapidly and decisively”.
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.
Omtzigt is the author of the report assessing the investigation into Caruana Galizia’s assassination and the rule of law in Malta that was adopted by the Council of Europe and led to the launch of the public inquiry the government had resisted for two years.
Omtzigt called for immediate action from the authorities, 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,” he said.
Mercieca is due to face potentially gruelling proceedings before the Committee on Advocates and Legal Procurators, headed by former Chief Justice Vincent De Gaetano. It followed a complaint by the late journalist’s family.
The government has tried to calm the waters by announcing an inquiry into Mercieca’s crossing over, which will be headed by former Chief Justice Joseph Azzopardi. But the Daphne Caruana Galizia Foundation said the inquiry was “opaque and unhelpful” because it would not look into the relations of Fenech and the lawyer.
While pointing out that Judge Azzopardi was widely respected, the inquiry launched by the government could only examine whether the Attorney General’s Office had followed the rules applicable to publicly-funded employers. It could not establish the origin and extent of the relationship between Mercieca and Fenech, or members of his defence team.
“It also cannot eliminate the possibility that Mercieca may have had unauthorised access to information relating to the prosecution of Fenech and any future prosecutions of his co-conspirators,” the Daphne Caruana Galizia Foundation said.