Court dismisses Yorgen Fenech case over police statements he gave in hope of Presidential pardon

The Constitutional Court has dismissed an appeal filed by Yorgen Fenech from a judgment rejecting his claim of having suffered a breach of his fundamental right to a fair hearing when his request to block testimony based on information he provided while attempting to gain a presidential pardon from being used against him was not upheld.

Fenech, who is indicted for complicity in the 2017 murder of journalist Daphne Caruana Galizia, had filed the appeal after the First Hall of the Civil Court in its Constitutional jurisdiction had ruled that his request to have the information he provided to the police declared inadmissible- was premature.

Fenech’s lawyers had claimed that using this information, which was given “solely” for the purpose of being granted a pardon for his alleged complicity in the assassination of Caruana Galizia, breached his right to a fair hearing.

They lamented that Fenech had not been cautioned when supplying confidential information to investigators, who were subsequently summoned by lawyers for the Caruana Galizia family to testify in the compilation of evidence before the Court of Magistrates.

In a decree handed down in November 2020, the Court of Magistrates decided that the police should testify about the statements made by Fenech to investigators regarding his request for a Presidential pardon, but ‘limitedly insofar as this concerns his involvement in the murder of Daphne Caruana Galizia and not information about other crimes with which the accused is not charged.”

The decree also stated that the testimony should be heard when the Attorney General requires it and not through questions by the parte civile, at that stage.

The evidence was eventually heard in December 2020 in a sitting which was held behind closed doors.

Fenech’s lawyers argued that the Court of Magistrates had been mistaken when it declared the evidence admissible as the information had been provided “with the express promise that if he is not given a pardon, this information can never be used against him.”

In a ruling handed down this morning, the Constitutional Court, presided by Chief Justice Mark Chetcuti together with judges Giannino Caruana Demajo and Anthony Ellul, ruled that declarations relating to the admissibility or otherwise of evidence is something dealt with courts of ordinary jurisdiction and should not be determined in a Constitutional case. This decision will eventually be taken by the Criminal Court in the apposite proceedings. “One must remember that in compilations of evidence, evidence is being gathered with the aim of preserving it and nothing is definite.” The plaintiff has other remedies available to him, irrespective of the compiling magistrate’s decree from last November, they said.

Fenech, who claimed that he had not been cautioned by the police that his statement could be taken as evidence against him, could raise that argument before the Criminal court, which would decide whether or not this was true. “This obviously after the relevant facts are considered as to exactly what happened when the plaintiff was spoken to by the investigators, and about which they will be testifying.”

The judges pointed out that the decree impugned by Fenech was not a final judgment, aside from the fact that the Constitutional Court did not have the competence at law to apply and interpret the Criminal Code.

In addition to this, the court observed that it was a fact that the Criminal Code did not impose an obligation on the police to administer a caution to suspects. That emerges only from the Police Act, which contains a guide on how interrogations are supposed to be carried out. This principle had been upheld in judgments of the European Court of Human Rights, the judges said.

“In criminal proceedings, the plaintiff will have every opportunity to contest the validity of all the statements he gave to the police, as the court understands he is already doing before the Criminal Court. This besides the fact that the plaintiff has not brought evidence and neither did he make strong arguments which could convince this court that his complaints…be investigated at this stage before his complaint is considered from the aspect of the ordinary law.”

While it was true that the Constitutional Court had produced judgments about police statements issued in the absence of an assisting lawyer, which recommend that such statements are not used in criminal proceedings, the judges said these cases were “very different from that case in question, where the court understands that the plaintiff was assisted by a lawyer.”

The court said it would not expand further on the issues raised due to the fact that Fenech would have to exhaust his ordinary remedies, which in and of itself leads to the conclusion that the constitutional case he filed is premature.”

The appeal was rejected with costs against the plaintiff. The Caruana Galizia family was ordered to settle the costs related to their intervention in the case.