Judge recused from case concerning sexual abuse at Church home

By Edwina Brincat
Times of Malta
March 7, 2017

http://www.timesofmalta.com/articles/view/20170307/local/judge-recused-from-case-concerning-sexual-abuse-at-church-home.641729

Lawrence Grech, one of the child abuse victims who instituted the case for compensation.

A case concerning sexual abuse at a church home run by the Missionary Society of St Paul is to proceed before a different judge, with plaintiffs winning a partial victory in court today.

After a long legal battle, the court of appeal presided by Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri pronounced that the civil case filed by the ten victims against the Attorney General, the MSSP, the Maltese Archdiocese as well as the two convicted priests, Godwin Scerri and Charles Pulis, should no longer be heard by Mr Justice Joseph R Micallef.

The issue stemmed from the victims' claim regarding the possible partiality of Judge Micallef in view of his current role as President of the Radio Maria Association.

The plaintiffs had claimed that the judge's close affiliation with the religious organisation could give rise to a bias which could in turn result in a possible breach of the plaintiffs' right to a fair hearing as safeguarded under the Maltese Constitution as well as under the European Convention on Human Rights.

In the course of the civil proceedings for damages, the plaintiffs had raised this plea demanding the recusal of Mr Justice Micallef. The plea was however rejected by the judge himself who declared that he was bound by the laws of procedure to continue to preside over the case.

A separate application regarding this issue was filed before the First Hall, Civil Court in its constitutional jurisdiction presided by Mr Justice Mark Chetcuti, who decided on April 28, 2016 that the failure of Mr Justice Micallef to recuse himself did not pose any threat to the plaintiffs' right to a fair hearing.

Lawrence Grech, Joseph Magro, Leonard Camilleri, David Cassar, Noel Dimech, Angelo Spiteri, Raymond Azzopardi, Charles Falzon, Philip Cauchi and Joseph Mangion as the victims of the abuse took their case before the Constitutional court which today finally upheld their request.

The court observed that the plaintiffs' claim regarding the possible bias of Mr Justice Micallef was justified. The Judge's role as President of the Radio Maria Association could instil doubt in the mind of "a reasonable and unprejudiced person" with respect to his impartiality in the hearing of this case.

This did not imply that doubts arose whenever a member of the judiciary chose to practise his faith through public and active participation. A judge or magistrate should not be constrained to "practise his faith in the catacombs so as to be deemed objectively impartial," the court remarked.

In this case, although Radio Maria Association had no links with the Archdiocese and although Judge Micallef's role as President of the Association was separate and distinct from that of the Director of programmes on Radio Maria, nonetheless a perception of the radio station's link with the church authorities in Malta did exist.

Such a perception could give rise to doubts regarding Judge Micallef's impartiality when deciding upon the plaintiffs' claim for compensation for damages suffered as a result of the abuse.

The court of appeal, declaring that it was in the best interests of justice to eliminate any such doubt, upheld the plaintiffs' appeal and ordered that the case be assigned to a different judge who would decide upon the merits of the claim.

Commenting on the judgement, lawyer Franco Vassallo who together with lawyer Patrick Valentino represented the plaintiffs, expressed his satisfaction that the court had upheld their argument.

MSSP claims case is time-barred

Having succeeded in convincing the court that their case should be heard before a different judge, plaintiffs now face a different hurdle.

Both the MSSP and the Archbishop’s Curia are pleading that the action is time-barred and that the plaintiff's claim for damages should not be upheld, even if the abuse actually took place, as was confirmed by the Criminal Court of Appeal.

Dr Vassallo said that the plaintiffs would be contesting this plea before the civil courts.