Updated | Yorgen Fenech lawyers call for media who published WhatsApp chats to be found in contempt of court

Yorgen Fenech’s lawyers have called for local media houses who published contents of Fenech’s WhatsApp chats to be found in contempt of court.

In an application filed before Magistrate Rachel Montebello, who is presiding over the compilation of evidence against the tycoon accused of bankrolling the murder of Daphne Caruana Galizia, lawyers Marion Camilleri, Gianluca Caruana Curran and Charles Mercieca point to articles published in MaltaToday’s sister paper Illum and the Times of Malta which published excerpts from the chats, which had been subjected to a specific ban on publication.

In an exclusive story, the Illum had revealed that a senior official at the OPM had instructed Fenech to push a story for publication on the Times or The Malta Independent against one of his own colleagues. The paper had reported that Fenech had spoken to an “Ivan” and had given him €10,000.

In another story, Labour MP Rosianne Cutajar was reported as having solicited help from Fenech for a 2019 survey, to which Fenech had replied “I will always be there to help you.” Further stories about €9,000 cash gifts to Cutajar and business deals with PA chief Johann Buttigieg were also taken from, and quoted, the chats verbatim.

Together with the application, Fenech’s lawyers attached a USB drive containing copies of his WhatsApp chats with Keith Schembri, Rosianne Cutajar, Johann Buttigieg and Heathcliff Farrugia, to prove that the news items had quoted from them.

“Therefore the information found on the mobile phone of the accused has somehow passed on to third parties and this in breach of the court order cited earlier,” said the lawyers, attributing it to a “political strategy”.

In spite of court pronouncements on the leaks, they had persisted and increased in number, argued the lawyers, claiming it showed a “clear contempt of the court’s orders and towards the correct administration of justice.”

Nobody is above the law, said the lawyers, going on to say that “it is something terrifying that a court order is barefacedly and repeatedly ignored.”

The publication of the chats placed the accused’s character in a bad light, particularly in the minds of the Maltese people some of whom would eventually be called upon to judge his guilt or otherwise in a jury, said Fenech’s defence team.

They called upon the court to declare the leaks as constituting contempt of court and to invoke “all the remedies it sees fit” to safeguard the administration of justice and to prevent further leaks.

Joe Cuschieri photos 'do not exist other than on Yorgen Fenech's phone'
In a separate note filed on the matter, Yorgen Fenech also objected to the use of photographs of him and MFSA head Joe Cuschieri which he claims were taken from his phone.

“To avoid any doubt, this photo does not exist anywhere else except on the applicant’s mobile phone,” said Fenech’s lawyers in a note filed in court. In addition to this, the article was “packed” with refereces and quotations from emails found solely on the accused’s mobile device.

The leaks started when access to Fenech’s phone data had been given to “some of the parties to these proceedings”, said the lawyers. It was clear that the journalist writing the stories had seen the communications and this constituted a breach of a court order.

The leaks would “infallibly” come out in front page stories every Sunday and would target particular individuals with the aim of creating a political furore.

“Therefore it is crystal clear in the mind of the applicant that the person/s …who are passing on this information are doing so for political reasons and by subverting these proceedings.”

The note goes on to state that Nationalist MP and parte civile lawyer Jason Azzopardi had made use of the chats in parliament, where he is protected by parliamentary privilege, to carry out political attacks on the members of the opposite side of the House.

Letting such leaks go unpunished would be tantamount to condoning the publication of information in breach of a court-imposed ban, argued the lawyers.