Court orders that Yorgen Fenech inquiry acts are given to defence

The magistrate presiding over the compilation of evidence against alleged Daphne Caruana Galizia mastermind Yorgen Fenech has ruled on a number of requests made by his defence in the last sitting of his compilation of evidence.

In the last sitting, Fenech’s lawyers had demanded access to the acts of the inquiry, including taped conversations and mobile phone data, claiming that the failure to do so was resulting in a breach of Fenech’s right to a fair hearing. Lawyer Charles Mercieca argued that the Attorney General was trying to stop the accused from presenting evidence and making his defence.

On his part, the Attorney General had declared that he intended to exhibit the acts of the inquiry in the next sitting, on October 6.

The court ruled that they should be exhibited, with the caveat that it has the last word on what can be shared, as the inquiry file itself contained copies of acts from several other related inquiries which should not be revealed lest it damage the ongoing inquiries.

The majority of Magistrate Rachel Montebello's 6,500-word decree dealt with the request for the geolocation data of a number of individuals, including lawyers. Denying this request, the court said that it was unnecessary, unjustified and disproportionate.

With regards to access to taped conversations and mobile phone geolocation data, the magistrate conducted an in-depth analysis of the legal issues and case law, including at European level. A central issue was whether the retention of the data, belonging to several individuals and lawyers, constituted interference in the fundamental rights of those targeted and whether this could be justified in the circumstances.

The European courts had consistently held that there had to be ties between the persons concerned and the reason for the data request. “Access can, as a general rule, be granted, in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime.”

Fenech had failed to indicate the reason behind this request and had not convincingly explained how the retention of the personal data – some of which subject to professional secrecy – is strictly needed, said the court.

The court said it was of the opinion that the keeping of the data for 12 months with all the personal information which it could reveal, constitutes serious interference in the fundamental rights of these persons, and the indefinite storage of the data as requested by the accused, would be against the law and breach their rights.

However nothing precluded the acceptance of such a request if made according to the principles established in case law, and with respect to the fundamental rights of the persons concerned and is limited to what is “relevant and strictly necessary.”

Likewise there was nothing stopping Fenech’s defence from making a similar request about receipts issued by the police for objects taken into evidence.

But the court also ruled that it was in favour of the production of witnesses who had released audio-visual testimony to the police during the investigation. But when the evidence requested by the accused consisted in a statement released by a third party who was summoned or would be summoned as a prosecution witness in the compilation of evidence against the accused and this evidence could incriminate the witness, the accused does not have an absolute right to this evidence.

Therefore, with this in mind the court said it was not going to take the statements as inadmissible a priori before the trial by jury, rather it was of the opinion that they should be produced in acts as evidence required by the accused for his defence.

The court ordered that the evidence be produced in the next sitting as it had decreed.

Read also: Yorgen Fenech’s defence claim ‘true masterminds’ of Caruana Galizia murder ‘running around outside’