Former Europol expert testifies in Yorgen Fenech compilation

Yorgen Fenech had not featured in the seven initial scenarios postulated by Europol in the early stages of the investigation into the murder journalist Daphne Caruana Galizia, the court compiling evidence against Fenech has been told.

Marius Van Der Meij, a former Europol expert who had assisted the investigation into the 2017 murder travelled to Malta from the Netherlands to give evidence before Magistrate Rachel Montebello on Thursday.

But a question about whether or not any of Fenech’s companies did feature in the report was blocked at this stage by the court.

At the beginning of his testimony this morning, Van Der Meij handed the court a sealed envelope, containing his 106-page report of his examination of data extracted from a forensically cloned copy of Caruana Galizia’s mobile phone and SIM card, as well as a hard drive containing related data that had been extracted from cloud storage. He had compiled the report in late 2017 and submitted it in the acts of the magisterial inquiry in 2018, he said.

He explained that of the tens of thousands of WhatsApp messages and emails present, he had only examined the ones in the English language. He said that he had advised the inquiring magistrate at the time to engage a Maltese speaker to examine the rest, but did not know whether this had eventually been done or not.

The court turned down the defence’s request to see the report, telling lawyer Charles Merceica that it first had to see it itself and ensure that none of the journalist’s sources would be put at risk. Instead, the magistrate ordered that it be kept under seal until that exercise was completed.

Mercieca asked the witness about the scenarios that were initially being considered during the early stages of the investigation. Seven scenarios had been hypothesised, Van Der Meij confirmed, which had identified a number of persons as “possible instigators.” 

The defence lawyer suggested that among the scenarios postulated were ones involving politicians, while others had considered family members of the victim as potential suspects. The court disallowed the question and ruled that the witness could not be asked about the names of other persons who had been suspected of involvement in the murder.

The magistrate did, however, permit a question about whether the defendant, Fenech, had featured in those scenarios. “Is Mr Fenech mentioned in this list? Yes or no?" asked the lawyer. "No." came back the reply.

Superintendent Arnaud was denied permission from the court to ask whether companies linked to Fenech had featured in the seven scenarios initially considered. The magistrate disallowed the question, telling the superintendent that her court was not investigating companies.

Another court-appointed expert, lawyer Martin Bajada, also took the stand to hand over hard drives containing copies of data he had been appointed to extract. He informed the court that he was unable to exhibit the contents of one of the exhibits - a mobile phone belonging to former OPM chief of staff Keith Schembri, because of a gag order that was currently in force. That order was the subject of ongoing proceedings before the Constitutional Court, he explained.

The compilation proceedings against Fenech had to be reopened after an October 2023 ruling by the Court of Criminal Appeal which instructed the agistrate presiding over the compilation of evidence to hear the testimony of a number of specific witnesses.

Caruana Galizia, an outspoken critic of the Labour Party and its associates, was assassinated by means of a bomb planted inside her car in October 2017. The Tumas heir, who is indicted for complicity in Caruana Galizia’s murder, has been described as the mastermind behind the assassination plot.

Brothers Alfred and George Degiorgio, were sentenced to imprisonment for 40 years after pleading guilty to carrying out the murder of the journalist, on the first day of their trial. A third assassin, Vincent Muscat, is also currently serving a 15-year sentence for his role in the murder, having received a lesser sentence in return for information after reaching a plea bargain agreement with the prosecution.

A fourth man, Melvin Theuma, received a presidential pardon for his part in the plot, in return for turning State’s evidence on this case. 

AG lawyers Anthony Vella and Godwin Cini are prosecuting. Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are assisting Fenech. Lawyers Therese Comodini Cachia and Jason Azzopardi are assisting the Caruana Galizia family as parte civile.

13:20 The magistrate adjourns the case to the 5th. The sitting is over. Karl Azzopardi

13:20 Mercieca asks the witness whether there was any part of the conversation with Edwin Brincat that was understandable. There was, she said, but because of the overlapping speech she could not transcribe it to the standard required in court. Persons listening to the conversation would find it more understandable, especially if they were already familiar with the voices. Karl Azzopardi

13:18 Lawyer Roberta Bonello, one of the experts appointed to transcribe recordings, takes the stand. She explains that there are times where people were talking over each other and could not be transcribed verbatim. Where it was unclear, she left a gap and did not attempt to deduce the garbled parts from context. Karl Azzopardi

13:03 At Mercieca's request, the court asks Van Der Meij whether he would be available to testify again. In the future, he says he would. Karl Azzopardi

13:00 Arnaud asks the witness whether he remembered the day he had completed the report. "I believe I had finalised it on the 14 May." Karl Azzopardi

13:00 Part of the analysis was going through the data and trying to describe it. Over 40,000 emails were examined and categorised according to topics and importance. Karl Azzopardi

12:59 It permits a question about whether Fenech is mentioned in the scenarios. Is Mr. Fenech mentioned in this list? Yes or no?" "No." replies the expert. Jason Azzopardi is allowed to ask a question. He asks the expert whether he had heard him correctly to say it had taken him a month to go through the emails. Van Der Meij says it had probably taken longer. Karl Azzopardi

12:57 "The possibility that there are suspects identified by Europol as instigators of the murder are facts in issue," the lawyer begins. The court repeats that the report is to be kept under seal until __ The witness cannot be asked about the names of other persons who were suspected of involvement in the murder, orders the court. Karl Azzopardi

12:57 The court orders the report to be kept under seal and asks Mercieca to justify his claim. Karl Azzopardi

12:55 Arnaud objects to the defence's suggestion that among the scenarios examined, there were ones involving politicians and others considered the family members of the victims. Karl Azzopardi

12:54 Mercieca says the witness' role was to identify the possible scenarios that led to the murder. Seven scenarios were established. Different persons identified as possible instigators, says the witness. Karl Azzopardi

12:52 Report was presented in May 2018, but was finalised earlier, confirms the witness. The lawyer makes the obvious suggestion that it was completed closer to the date of the incident. Van Der Meij explains that there had been no further communication through the phone after the day Caruana Galizia was murdered. Karl Azzopardi

12:51 Defence lawyer Charles Mercieca begins his cross examination. Karl Azzopardi

12:50 Mercieca asks to see the report, but his request is refused at this stage until the court establishes that no sources are at risk. Answering the court, the expert says he does not know whether the Maltese emails were ever analysed. “The report was handed over to the magisterial inquiry in 2018.” Karl Azzopardi

12:50 It was only carried out on the two exhibits examined and not in relation to any other information., he says. "I went through all of the data, mainly consisting of email communication. He only focused on English language emails, and advised that a Maltese-speaker be engaged to analyse the Maltese language emails.” Karl Azzopardi

12:47 Arnaud asks Van Der Meij to explain the process. Karl Azzopardi

12:46 He gives an overview of the data recovered from the devices. Caruana Galizia was communicating through email and WhatsApp amongst other means, he says. It is an exact copy of what he had handed in to the magisterial inquiry, he said. The magistrate instructs the expert to put his signature to the report conclusions. Karl Azzopardi

12:44 It was drafted in relation to the task given to him as a court expert appointed by magistrate Vella. Analysis was performed towards end of 2017. The analysis was of data performed on cloned phone and sim card and a hard drive of data extracted from cloud storage. Karl Azzopardi

12:43 Asked by the court whether he is in a position to submit his report, Van Der Meij replies in the affirmative. He hands over a sealed white A4 envelope containing an operation analysis report, 106 pages long. Karl Azzopardi

12:42 He has travelled to Malta from the Netherlands to present a report on the extractions from Caruana Galizia's mobile phone. Karl Azzopardi

12:40 The court is back in session. Martin Van Der Meij is called to the stand. Karl Azzopardi

12:38 Superintendent Keith Arnaud enters the courtroom and chats with the prosecutors while we wait for the witness to arrive. Karl Azzopardi

12:29 The sitting is briefly adjourned while the next witness makes his way to court from the police headquarters in Floriana. Karl Azzopardi

12:29 Prosecutor Anthony Vella informs the court that the next witness had been given the wrong time for the sitting. The court replies that the time was changed the day after the last sitting. "This is not an excuse; this is an insult." Karl Azzopardi

12:28 He had prepared a report about a device in the presence of the inquiring magistrate, which he now exhibits. Karl Azzopardi

12:25 A second court expert, Legal Procurator Quentin Tanti takes the stand next. Karl Azzopardi

12:25 He asked for authorisation to change the battery pack, as it had become damaged and swollen in storage. Mercieca asks him about the court-imposed ban about the phones. Bajada replies that he could not give an indication as to when the gag order would be lifted because of the ongoing constitutional case. Karl Azzopardi

12:24 “There are ongoing constitutional proceedings about it,” he says. Karl Azzopardi

12:24 He clarified that although Schembri's phone was not stored in the same state he had left it, he did not suspect tampering. Karl Azzopardi

12:24 Bajada hands copies to the defence, prosecution and parte civile. He says he was unable to exhibit the contents of Keith Schembri's mobile phone because there is a gag order in force which must be decided by the Constitutional Court. Karl Azzopardi

12:23 He said that in keeping with the court's orders, he was exhibiting an external hard drive containing the cloned phone data requested. Karl Azzopardi

12:23 Bajada takes the witness stand and is administered the oath. Karl Azzopardi

12:23 Prosecutor Anthony Vella tells magistrate Rachel Montebello that court-expert Martin Bajada will testify first, followed by a Europol representative and former Europol expert Martin Van Der Meij. Karl Azzopardi

12:22 Yorgen Fenech has been escorted into the courtroom by CCF guards and now sits alone in the dock, while relatives sit in the row behind him. Karl Azzopardi

12:22 Good afternoon, senior court reporter Matthew Agius is in the courtroom to follow proceedings. Karl Azzopardi