Yorgen Fenech lawyers demand police investigate alleged mishandling of his mobile phone evidence

In a court filing registered today, the man indicted for complicity in the murder of Daphne Caurana Galizia, Yorgen Fenech, has called upon the Police Commissioner to investigate what he claims to be a failure by the police to correctly preserve the integrity of the data extracted from his mobile phone.

Lawyers for Fenech filed a judicial protest before the First Hall of the Civil Court, accusing the Police Commissioner and Europol of failing in their duty to protect the integrity of Fenech’s mobile phone after seizing the device during his arrest.

The phone in question had been taken into evidence directly from the accused on 20 November, 2019 during Fenech’s arrest at Portomaso. Two days later, the password-protected device had been sent to Europol’s headquarters in the Hague in order to access its contents.

The judicial protest goes on to state that the device had been handed over to a Europol staff member who was tasked with “brute forcing” the password to gain access to the device. This staff member had not been authorised by the inquiring magistrate to do so, Fenech’s lawyers claim.

The brute force process successfully cracked the password on 9 January, 2020, and the agent in question performed a partial extraction of the data stored on the device.

A second Europol employee had testified that the process of extracting the data from Fenech’s mobile phone was finally completed on 27 October, 2020.

But the protest filed by Fenech’s lawyers goes on to describe this timeline as “suspect,” in view of prior testimony given in December 2019 by Superintendent Keith Arnaud, who is in charge of the police Homicide Squad and is lead investigator on the Caruana Galizia murder case.

In that December sitting, Arnaud had told the court that the police were already in possession of data extracted from the phone, with Fenech’s lawyers now using this to claim that the extraction had taken place nearly a month before the date specified by the Europol agent.

Fenech claims that this “could only mean that the protested parties had accessed the device behind the backs of both the inquiring magistrate as well as the defence,” and that the data on the phone had therefore been compromised.

It was also pointed out that the evidence bag in which the device had supposedly been sealed, had been found to have a tear in it, which was large enough for the phone to be taken out and placed back inside. “This tear in an evidence bag containing such sensitive evidence was never explained or justified by those who were duty bound to preserve this evidence,” the lawyers said.

The judicial protest alleges that during the time that this evidence had been in the possession of the police, its contents had been “stealthily extracted and tampered with” and that this also coincided with a number of leaks of the phone’s contents to the press and “a former member of parliament,” which were aimed at “creating adverse media coverage and influencing potential jurors, as well as undermining the accused’s family life.”

The lawyers repeated their claim, made in court earlier this month, that during the time when the phone was supposed to be in a faraday room at Europol's headquarters, isolated from mobile and wifi networks, it had been making a number of calls to the mobile phone number registered to Fenech’s wife.

The protest also alleges that the device had been reporting its location data and connecting to cell towers and wifi, for much of this period. “This is a cause for great concern as according to experts in the field, when a mobile phone is not isolated from networks, the information stored in it is liable to be tampered with.”

The judicial protest, signed by lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca, accuses the police of failing in their duty to safeguard the evidence, in such a way as to have serious negative effects on the judicial process against the accused as well as his private life. It ends with a formal request that the Commissioner of Police initiate “the opportune proceedings, including an internal investigation” into the issue, in terms of his legal powers.