Judge refuses recusal request in case against Keith Schembri’s phantom job to Melvin Theuma

A Judge hearing the Attorney General’s appeal in the Melvin Theuma phantom job case has rejected a request by Keith Schembri and his co-accused to recuse herself, ruling there were no objectively justified reasons for her to step aside.

In a decree delivered earlier this month, Madam Justice Natasha Galea Sciberras dismissed an objection filed by former OPM chief of staff Keith Schembri, Yorgen Fenech, former OPM official and Rabat Mayor Sandro Craus, former Family Ministry private secretary Anthony Mario Ellul and former government company CEO Anthony Muscat.

The appeal stems from the acquittal of the five men in criminal proceedings concerning a phantom government job given to Theuma, the self-confessed middleman in the assassination of journalist Daphne Caruana Galizia.

The original case collapsed in 2025 after a court ruled that Theuma’s testimony was inadmissible because he repeatedly refused to submit to cross-examination by the defence.

Although prosecutors maintained that no charges were envisaged against Theuma in relation to the phantom job and sought to proceed with his testimony, the witness continued to refuse to answer questions.

Magistrate Monica Vella later concluded that the defence’s right to cross-examination had been breached and excluded all of Theuma’s evidence. This decision ultimately led to the acquittal of the accused.

Following the acquittal, the Attorney General filed an appeal challenging that decision.

The accused subsequently sought the recusal of Judge Galea Sciberras, who was hearing the appeal, on the grounds of her relationship with lawyer Arthur Azzopardi, arguing that his past involvement in matters concerning Theuma could create a perception of bias.

According to the request, Azzopardi had represented convicted murderer Vincent Muscat, known as il-Koħħu, in 2018 and 2019 and had allegedly assisted efforts that eventually led to Theuma being investigated and arrested. The accused also referred to testimony given in separate proceedings suggesting that Azzopardi had been involved in a secret services operation targeting Theuma in 2018.

The defence argued that because the central issue in the appeal concerns the admissibility of Theuma’s testimony, these connections were sufficient to raise concerns about the appearance of impartiality.

However, the Judge found that the circumstances cited by the accused did not justify recusal.

In her decree, Galea Sciberras noted that Maltese law provides specific grounds upon which a Judge may be recused and observed that none of those grounds applied in the present case. She further held that while courts must also consider constitutional and human rights principles concerning judicial impartiality, the facts presented by the defence fell short of establishing an objectively justified fear of bias.

The Judge emphasised that Azzopardi was never Theuma’s lawyer and was not involved in the manner in which Theuma gave evidence in the proceedings now under appeal. She also observed that Theuma does not mention Azzopardi in the testimony at the centre of the case.

Referring to European Court of Human Rights jurisprudence, the Judge said previous professional connections did not automatically give rise to a conflict of interest, particularly where several years have elapsed, and the matters in question were legally distinct.

The defence had argued that the issue was not whether the Judge was personally biased but whether a reasonable observer could perceive a lack of impartiality. Yet, the court held that public perception alone was insufficient to justify recusal and that there must be objectively justified reasons giving rise to legitimate concerns regarding impartiality.

The request for recusal was therefore rejected, and the appeal will continue before Galea Sciberras.

The appeal is expected to focus on whether the lower court was correct to exclude Theuma’s testimony after he refused to answer questions under cross-examination, a ruling that ultimately led to the acquittal of all five accused.