Yorgen Fenech's lawyers claim prejudicial pretrial publicity, Judge recuses herself

Lawyers for Yorgen Fenech have claimed that “unilateral submissions” made during the public inquiry into the murder of Daphne Caruana Galizia could constitute prejudicial pretrial publicity.

Fenech filed an urgent application in the acts of the Public Inquiry this morning, in which he explained that on 28 October he had filed an application asking for access to all the testimony of the inquiry. The board had ordered that the oral submissions of the Caruana Galizia family be  heard with regards the application.

Fenech said it was a “very worrying” development, arguing that the parte civile (injured party) has no legal standing in the proceedings.

Neither had he been notified with a reply to his application or the decree, unlike the Caruana Galizia family lawyers who appeared to have been notified and given a date for oral submissions. “The principles of equity and audi alteram partem (the hearing of both sides) seems to have escaped everyone,” noted Fenech’s lawyers.

In addition, it appeared from newspaper reports that the Caruana Galizia family had made submissions before the board and asked that Fenech’s application be rejected and that he be found guilty of contempt of court, he said. He had not been given the opportunity to respond to these requests, he added.

All of these unilateral submissions were reported extensively, said the lawyers, arguing that this would create an imbalance in the mind of the public from whom eventual jurors would have to be selected.

Fenech warned that he would be exercising all his remedies under the Constitution and the European Convention on Human Rights “as a logical consequence of the partial and prejudiced actions of this Board that seems to have lost all sense of what which a public inquiry should be…in order to truly be a Board of Public Inquiry and not a Board of Public Inqiusition.”

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca are appearing for Fenech.

Judge recuses herself
Meanwhile, in the Criminal proceedings against Fenech, a judge who had been on the receiving end of Caruana Galizia's writings in the past has recused herself from hearing an application in order for justice to be seen to be done.

The lawyers had filed an application demanding the proceedings resume and for middleman Melvin Theuma to return to the witness stand for cross-examination.

The records of the compilation of evidence are currently in the possession of the Attorney General’s office and the next date for hearing is scheduled for December 2. 

Fenech’s lawyers want to bring the date of the sitting forward and have requested the Criminal Court to order that the records be sent back to the court of magistrates for the case to continue. 

The application also requests Melvin Theuma be brought back to the witness stand for cross-examination.

Theuma, the self-confessed middleman in the plot to assassinate Daphne Caruana Galizia, was found in a pool of blood inside his Swieqi home the night before he was due to testify on July 22.

Theuma was, for a time, in a critical condition caused by stab wounds which the police say appeared to be self-inflicted.

Fenech’s lawyers are also seeking to summon Johann Cremona, a business associate of Fenech’s to the witness stand once again.

Cremona had testified last June, at the end of which sitting the court had ordered that former police commissioner Lawrence Cutajar be formally investigated on allegations that he tipped off Theuma about his impending arrest. 

In today’s application, Fenech’s lawyers are also requesting all service provider mobile phone data gathered in the course of the investigations, as well as those voice recordings by Theuma which had been discovered this year.

Additional evidence requested includes all phone taps in the possession of the prosecution, particularly those related to calls between Edwin Brincat il-Gojja and Cutajar, Theuma and Brincat as well as Theuma and former assistant police commissioner Mario Tonna.

Court experts appointed in July sitting to handle transcripts of recordings, are also to present their work. Prosecuting Inspector Kurt Zahra and a Vodafone representative also feature among those listed in the court application. 

The application was filed before the Criminal Court, presided over by Madam Justice Consuelo Scerri Herrera, who abstained.

Madam Justice Consuelo Scerri Herrera decreed this morning that it was accepted in local and international jurisprudence that if, according to the usual subjective and objective criteria, a person adjudicating a case cannot be independent and impartial, or whose independence or impartiality could be reasonably doubted in a particular case, then that person should abstain or recuse themselves.

This was in homage to the principle of the Rule of Law, she said.

The case will now be reassigned according to law.