Judge dismisses request by Yorgen Fenech to prevent police testimony on pardon meetings

A judge has dismissed as premature a request by Yorgen Fenech for a court order preventing the police from testifying as to evidence Fenech gave during meetings in which he requested a presidential pardon.

The decision was handed down by Madam Justice Anna Felice, presiding the First Hall of the Civil Court in its Constitutional jurisdiction and consolidated a decree she had already handed down last November.

The admissibility of evidence is to be decided before the courts of criminal judicature, said the court adding that it would not decide on admissibility until the matter came before the criminal court which sieves the evidence.

After his arrest, Cabinet had declined Fenech’s request for a presidential pardon in return for his testimony on the 2017 murder of journalist Daphne Caruana Galizia. The police had proceeded to interrogate the businessman.

In an application filed last November, the Caruana Galizia family had filed an application asking that the police be ordered to testify as to what Fenech had told them in the hope of receiving a pardon. The defence had objected to the request but the court of Magistrates had declared the information he had given as admissible in evidence against him.

This breached Fenech’s fundamental rights, argued his lawyers. Not only had the information been given confidentially to the police after a promise of a pardon, but had been done so without the required safeguards usually granted to suspects at law.

It was up to the prosecutor to prove the information released by the accused was given under the necessary safeguards, argued Fenech’s lawyers, saying this applied in particular when the prosecuting officer had not been asked to testify in this regard.

The State Advocate had counter argued that Constitutional proceedings are not appeals from ordinary courts and that the action was filed too early when the plaintiff had other legal options.

In its decision on the matter, the First Hall of the Civil Court in its Constitutional jurisdiction, presided by madame justice Anna Felice quoted from Republic of Malta vs Anna-Maria Beatrice Ciocanel, decided in 2013, in which it was held that “It is a well established principle that as a rule questions relating to fair trial are to be addressed upon an assessment of the trial as a whole and that it is only at the conclusion of such trial that a proper assessment of whether there has been a fair trial can be made.”

Likewise a 2016 judgment by the ECHR in the case Tyrone Fenech et v Malta it was held that “In the present case the criminal proceedings concerning the applicants have not come to an end. Thus, although the constitutional jurisdictions have already decided the matter, the Court considers that it cannot be excluded that, inter alia, the applicants be eventually acquitted or that proceedings be discontinued.”

The court therefore said that it was not in a position to consider the complaint in its entirety at that stage.

The fact that the information related to a pardon request was not relevant, said the court. “This is an issue of preservation of evidence for criminal proceedings. This court repeats that the compiling court is simply conserving the evidence and not deciding on the guilt or otherwise of the applicant.