Yorgen Fenech's mobile phone was broadcasting its location whilst in Europol custody, lawyer claims

One of Yorgen Fenech’s lawyers has claimed that Yorgen Fenech’s mobile phone was still broadcasting its location at a time when it should have been off and stored in a Faraday room by Europol.

Lawyer Charles Mercieca claimed that metadata relating to the mobile showed it was still transmitting its location.

This was one of the claims made by Mercieca this morning as the defence made its submissions on Fenech’s preliminary pleas before the Criminal Court.

Mercieca said that four Europol experts had been nominated in November 2017. Their report indicated that the police had sent Europol a message through SIENA - a secure messaging system for communication between national police forces - a few days before the Europol experts had been formally appointed by the court in November 2017.

“The communication didn’t happen through the magistrate, but through SIENA messaging, a police to police system, which is insular and has no access to anyone outside the police force.”

The magistrate had ordered Europol to exhibit a copy of the message by the next sitting, but before that could happen, the bill of indictment was issued, he said.

“To add insult to injury, the prosecution had, that December, asked for authorisation to speak to the experts whom they had already been in contact with. Was this to give the impression that they didn’t know them?” Mercieca asked.

The lawyer argued that court experts in every criminal case were to be paid by the Registrar of Courts, but no information relating to the payment of the Europol experts were listed in the case file.. “Therefore, they either weren’t paid, which is not good, or they were paid by someone else. And in that case, who? Who pays the piper calls the tune,” said the lawyer.

“We have established that there was communication with them before the appointment,” said the lawyer, also claiming that while court experts ought to take orders only from the court, these experts were being directed by Europol.

Mercieca also claimed shortcomings in the chain of custody of Fenech’s mobile phone, telling the court that there were so many breaks in this chain in this case that the evidence had been “irremediably compromised.”

“This is a mobile phone, which before the compilation, had been used as a weapon for several attacks on Fenech and politically, on others,” he said.

The defence also claimed that while proceedings were still underway, two phone calls had been made from this phone to Fenech’s wife.

The phone had been seized on 22 November 2019 and was taken to Europol for extraction using software which Malta didn’t have and because it was password protected, Mercieca said.

“It was then given to the Maltese authorities,” he said, adding that a Europol expert had found the password on 9 January 2021. Months later, the phone was given to another Europol expert, and a full extraction was attempted, said the lawyer.

“What emerged from this? That between the 22 and 25 November 2019, the police were already in possession of a full extraction of Fenech’s mobile phone - months before the password was found.”

“It was so full and precise that Superintendent Keith Arnaud (then still an inspector), in his testimony in December 2019, said that the investigators had the contents of the phone and hundreds of thousands of photos. So why did they take it to Europol, to a person not duly nominated or paid by anybody to carry out the extraction?” submitted the lawyer.

“If they already had the extraction, then now we know why the extracts ended up on the news,” he said. “Is Europol lying? What I know is that there was a tear in an evidence bag, which nobody could explain. We aren’t asking for the jury not to take place, but for the law to be followed,” the defence lawyer said.

Mercieca waved a file which he said contained the metadata relating to the phone and its contents. “The metadata also shows the phone’s voyage from Portomaso to the Hague. This phone continued to show location data till 5 November 2020.”

He invited the court to access the metadata itself. “This data doesn’t lie. At a time when the Europol expert told us that the phone was off and stored in a Faraday room, we have its location data. So it wasn’t in a Faraday room, and so it could be accessed, and the data inside it could be tampered with.”

‘85% reconstruction’ of Daphne Caruana Galizia's mobile phone

A court expert also testified today on the work to reconstruct Daphne Caruana Galizia's destroyed mobile phone.

Asked by lawyer Charles Mercieca as to what work he had carried out on Caruana Galizia’s mobile phone with regards to this case (Yorgen Fenech's case), he replied, “absolutely nothing.”

The expert went on to explain that he had been appointed to assist the magisterial inquiry into the murder by the duty Magistrate at the time Consuelo Scerri Herrera and, subsequently, Magistrate Anthony Vella. Both of these members of the judiciary were subsequently elevated to judges, and his work was later extended by other magistrates. He was due to exhibit a number of reports, he said.

With regards to the murdered journalist’s mobile phone, he explained that it had not initially been found and so the decision was taken to rebuilt it from scratch. “85% of the data was reconstructed,” the expert said, adding that at a later stage in the investigation, the remains of the mobile phone had been discovered beneath the wreckage of the bombed-out car. It had been destroyed in the explosion, the expert said, but its SIM card had been retrieved and sent abroad to be analysed.

The expert’s report had subsequently been exhibited in the acts of the compilation of evidence against the Degiorgio brothers, who were later indicted for carrying out the murder. He explained that he had not exhibited his findings in the inquiry relating to Yorgen Fenech simply because he had not been appointed during that inquiry but during the compilation of evidence.

“The destroyed mobile phone should be in the acts of [Magistrate, now judge] Anthony Vella’s inquiry,” he said, adding that he did not know what happened to the reconstructed mobile after that, as it had subsequently been passed on to Europol.

The inquiry continues, now being led by Magistrate Victor Axiak, he said.

Mercieca asked whether he had concluded any of the reports that he had been asked to compile, but the expert replied that the reports were still open and had been taken over by another magistrate and were, therefore, still subject to secrecy.

Mercieca asked about the 85% data recovered. The expert explained that when he had exhibited a copy of this reconstruction, an agreement had been reached with Magistrate Vella that the sources which were stored in the device were not to be disclosed to any of the parties. They were subsequently redacted from his report, he said.

Mercieca asked what the data consisted of but was stopped by the judge, who explained that this would constitute new evidence which would require the court to order the reopening of the compilation of evidence and send the acts of the case back to the court of magistrates.

The lawyer then asked whether this information could be found in the acts of other proceedings. “Yes,” replied the witness, “but it is protected by an agreement and a court decree that prohibits any of the journalist’s sources from being revealed.” None of the parties had access to it, he said.

A number of experts had been involved in the examination of Caruana Galizia’s mobile phone, and a number of reports had been made, said the witness, explaining that the intention of the device’s examination was to identify any potential threats Caruana Galizia might have received before her death.

“[Daphne Caruana Galizia’s ]mobile phone had not been found, and we had to find it at all costs,” recalled the witness. “For a number of days, we were unable to search the wreckage and so the magistrate granted permission to clone the mobile phone which we were looking for.” 

The phone was recreated using advanced data retrieval techniques; he said before the contents were extracted and exhibited in the case Repubblika vs George Degiorgio et.

“Were any copies made of it?” Mercieca asked.

“The case is what it is; there were a lot of political ramifications. Under the inquiring magistrate’s orders, in order to have a means of control, a full copy of the data was given to the Caruana Galizia family,” he said. The witness added that he did not know whether a copy had been handed to the police.

He repeated that, while the original mobile phone had been destroyed in the blast, a digital clone of the original existed and had been exhibited in the case against the Degiorgios. This had been shared with Europol, besides any copies which may have been requested to have been made by the parties in this case.

The court also heard submissions on Fenech’s latest bail request and is expected give a decree on the matter from chambers.