Yorgen Fenech lawyers claim fundamental rights breach over lack of disclosure

Lawyers for Yorgen Fenech have filed a constitutional case against the State Advocate and the Commissioner of Police, arguing that an alleged lack of disclosure of the evidence against their client, on the part of the police, is breaching his fundamental rights.

Fenech is indicted and awaiting trial on charges of having commissioned the murder of journalist Daphne Caruana Galizia in 2017.

In an application to the First Hall of the Civil Court, in its Constitutional jurisdiction, Fenech’s lawyers Marion Camilleri, Gianluca Caruana Curran and Charles Mercieca say that Fenech had made several requests for disclosure of the evidence against him, as is the right of every person accused under the Criminal Code.

The Constitutional application states that Fenech has made a total of ten requests for disclosure, starting during his initial interrogation. The application goes on to quote a decree handed down on 24 December 2020 by the court of Magistrates, which unambiguously stated that the police were obliged to grant him “timely access” to material evidence relevant to his defence.

“Despite all this and despite the duties of the competent authorities, amongst them the Executive Police…to this day [Fenech] has still not been given access to the material and all the evidence in the possession of the competent authorities…” said his lawyers. Fenech had only been granted limited disclosure of the evidence against him, the lawyers say, adding that this had been selected by the prosecuting officer.

As it is the police who lead and manage investigations, it was presumed that the police were in the best position to know exactly evidence emerged from the investigations, the application goes on to say, protesting that Fenech had no way of knowing what evidence the police had in their possession.

Fenech’s legal team argue that the refusal and “manifest reluctance” of the police to grant him access to all the evidence was leading to “actual prejudice…to the extreme that the undersigned is unable to prepare his defence.” Quoting the law, they said the access to the prosecution’s evidence had to be given to the defence before the start of Fenech’s trial by jury.

The lawyers also highlighted that section 534AF of the Criminal Code, which regulates the process of disclosure in criminal cases, does not provide the method and neither does it give any power to the affected person to contest a refusal by the authorities to a disclosure request.

This, Fenech’s defence argue, led him to “believe that he is suffering a breach of his fundamental right to a fair hearing “ as protected by the European Convention on Human Rights and the Constitution.

Fenech requested the court to declare that his rights had been breached and order the authorities to supply him and his lawyers with a complete list of the evidence obtained through the investigations, relevant to the case against him.

He asked the court for permission to exhibit this evidence during his trial by jury.

The court was also asked to declare that section 534AF of the Criminal Code did not offer persons accused with an ordinary remedy to contest a refusal to grant disclosure by the authorities, resulting in a breach of his right to a fair hearing