Court denies Yorgen Fenech request for all mobile phone data gathered by police

The Court of Magistrates has denied a request by Yorgen Fenech’s lawyers to order the production of all mobile service provider data gathered by the police in the investigation against him.

In a decree handed down yesterday, Magistrate Rachel Montebello ruled that although the police had gathered a lot of information during the course of their investigation into the murder of Daphne Caruana Galizia, this did not mean that it was material evidence in the case against the accused.

Although the defence had the right to access the results of the investigations this right “did not necessarily extend to every part of or all the material of the investigation.”

“The court doesn’t see that it should order that the accused have unlimited access to all the material of the investigation, especially when this information deals with private individuals, even if they could have been persons of interest in the investigation of the murder.

This was the line also taken by European jurisprudence, said the court.

The fact that the police might have felt the information was relevant enough to be gathered in the investigation is not a valid reason for the accused to be given access to it, said the court, much less produced in the proceedings without a valid reason which could exculpate the accused or mitigate his punishment.

Noting that at this stage it could not order the production of further evidence unless requested by the Attorney General, the court rejected the request.

Other decree

In a decision handed down this morning a judge has thrown out a request by Yorgen Fenech for a court order preventing the police from testifying as to evidence Fenech gave the police during meetings in which he requested a presidential pardon.

Madam Justice Anna Felice, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, noted that the case had been filed after the Court of Magistrates had upheld a request by the parte civile in the criminal case against Fenech, which had asked the prosecuting officer to testify about everything (and not a selection of) what the accused had said during his arrest. 

Fenech complained that if this testimony is delivered, it would breach his fundamental human right to a fair hearing.

In her judgment on the matter, Madam Justice Felice began by pointing out that constitutional proceedings should never be used as an appeal.

Quoting a raft of European and Constitional judgments, the judge noted that the decree in question was legitimately pronounced by a competent court and did not appear to be lacking in form or substance. Neither was there the risk of any irremediable harm, which is a prerequisite for a case of this nature, said the court.

“The aim of a compilation of evidence is essentially the preservation of the same evidence. The admissibility of evidence could always be contested at the opportune moment after the bill of indictment is presented. Witness evidence can eventually be expunged if inadmissible.”

Fenech had expressed concern at the particular attention that the media is giving this case but the court said that it could always order a ban on the publication of certain evidence which it felt could prejudice proceedings.