Keith Schembri's mobile phone data will not be handed to Yorgen Fenech, constitutional court rules

The Constitutional Court has overturned a judge’s decision to order the Commissioner of Police to hand over data extracted from Keith Schembri’s electronic devices to Yorgen Fenech’s lawyers. 

In a decision handed down today by the Constitutional Court, presided by Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul, ruled that although the law granted wide discretion to the judiciary in cases where fundamental rights were at risk, this flexibility was not unlimited.

All parties to a case were entitled to legal certainty and equality of arms and they should not be blindsided by an interpretation which was “manifestly not compatible with what the law itself provides,”said the judges, pointing out that the law imposed an absolute prohibition on the exhibition of any records from a magisterial inquiry which had not been concluded and deposited in court.

The court’s decision was buttressed by the fact that although Fenech’s lawyers had insisted that the phone data was “relevant and vital” to their case, they had not given the court “the slightest indication” as to how.

“The court finds itself in the impossibility of weighing the appellant’s interests against the public interest in order to determine whether this is a case where the disclosure of the requested documents despite the legal provisions,” said the judges, ruling that these proceedings could not be used as “a fishing expedition,” overturning the previous court’s decision to uphold the request.

State Advocate’s contempt of court fine revoked

The Constitutional Court also handed down judgment in a connected appeal filed by the Office of the State Advocate after it was fined €500 for contempt of court on the grounds that the office filed an appeal to a decree that he had renounced the right to.

Mr Justice Lawrence Mintoff had imposed the fine on 16 December, in a strongly worded decree which denounced the fact that the State Advocate’s office had filed the appeal on behalf of the Police Commissioner against an order to exhibit the data extracted from Keith Schembri’s mobile phone, despite giving the court assurances that it would not. 

In its decision, the Constitutional Court noted that the fine had already been revoked by the judge who imposed it and it  therefore did not need to examine the merits of the issue.

 Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri were counsel to Fenech. Lawyers Maurizio Cordina and Miguel Degabriele appeared for the defendants.