Magistrate denies Europol request to withhold information in Yorgen Fenech money laundering case

A court has refused a prosecution request that it said would effectively grant Europol witnesses the right to intentionally withhold information from the court without facing any repercussions. 

Magistrate Donatella Frendo Dimech sharply criticised prosecutors for exhibiting the request, which was sent by Europol to the police and not to the court, in the case against Yorgen Fenech and Nicholas Cachia in which they are charged with money laundering, describing it as “an obscenity”.

The money laundering is alleged to have taken place from April to October 2019, through the conversion or transferring of property which the defendants allegedly knew had been derived from criminal activity. The amount in question is some €45,000 according to previous court testimony.

Yorgen Fenech, who is separately indicted, awaiting trial for commissioning the 2017 murder of journalist Daphne Caruana Galizia, is also accused of acting as an accomplice under money laundering laws, misappropriation and fraud to the detriment of Glimmer Ltd, which he co-owns with his uncle, Ray Fenech.  

Police inspector Brian Paul Camilleri informed the court on Monday that he had received a communication from Europol after the last sitting.

Taking the witness stand, he explained that on January 9, he had received authorisation from Europol for witnesses from the organisation to testify. After the last sitting, he had asked for clarification about the authorisation and was told by way of reply that it was a required step and specified restrictions on the witnesses, ostensibly to protect operational activities.

Europol’s reply upset the magistrate greatly, who described the suggestion that a witness could unilaterally decide to be selective in its testimony as “an outrage against this court, and towards the Maltese state.”

“The court is not going to be bound by any restrictions. I will follow Maltese law. How am I to know what Europol’s operational activities are? I made it very clear last time, but you keep on persisting. The only law binding me is Maltese law and nothing else. If you are bound by agreements with Europol, exhibit them.”

After reading the letter out in open court, the magistrate informed the parties that she would also be sending it to the President of Malta. 

“What have we come to?! You are the authorities, you know what questions to ask and what the defence cannot ask…This [letter] is saying that if he takes a false oath, or challenges the court, I can do nothing about it.” 

The court dictated a note observing that the letter prompted the parties and no less the court to consider carefully what questions they may ask Europol staff [in court], some of whom are experts appointed by the Maltese authorities and therefore subject to Maltese law. 

The letter, which was read out in open court, stated that the information requested must not jeopardise Europol investigations, among other things. Personal data and information provided to Europol “may not be testified about unless the originator’s consent is obtained prior to the testimony”.

“This letter is intended for you, not the court,” the magistrate pointed out to the prosecution.

“They are blatantly saying that they are not going to tell me where they got certain information from. They are telling me that I will be given a doctored version and I will not stand for this.”

Addressing the prosecutors, Frendo Dimech pointed out that their exhibiting of the letter was not only unnecessary but potentially harmful to the cause of justice. “Only you know if there was an originator's request - you sent the request. What have we come to? For shame! It is an obscenity!”

Calleja Grima, for Cachia, dictated a note, strongly objecting to the continued use of the testimony delivered by Europol witnesses in this case, in view of the correspondence exhibited in the acts today.

“This because of the fact that the correspondence in question is evidently subject to serious doubts as to whether the oath administered to these witnesses, had been respected in toto and because the correspondence gives rise to the suspicion that the Europol witnesses felt they were exempt from the court’s controls…and the sacred obligation to testify according to their oath and not with loyalty to their employer.”

The court must know who the originator is and where the evidence is coming from, explained the magistrate, adding that the letter stated that the witnesses in question “are participating in an ongoing inquiry.”

Prosecutor Francesco Refalo pointed out that the witnesses merely had the option to withhold information, but were not obliged to, but this did not wash with the court.

“The fact is that they are not free to answer all questions. How can I know what contracts they have? How can the information be free if they are saying, before even starting, that they will hold back information that could have been provided by the State or other parties.”

Calleja Grima objected to the testimony of all Europol witnesses that had been inserted in the acts of this case, as well as the inquiry and reserved the right to make further requests and objections once evidence.

At this point the lawyer asked that Europol’s code of conduct be exhibited, arguing that it showed where its loyalties lay. The court, however, refused the request. “I am not going to let anyone derail these proceedings. They are about money laundering and money laundering only.”

One of the Europol experts testified briefly today via videoconferencing for the purposes of cross-examination.

The court permitted defence lawyer Charles Mercieca to ask direct questions about the credibility of the witness.

Mercieca asked the witness, as a court-appointed expert, to confirm whether he was employed by Europol under contract. The court rephrased the question: “When you served in the analogous proceedings, was it as a court expert or as a Europol delegate?”

“As a court expert,” the witness replied.

“So you are bound by local regulations,” said the court. “I kindly ask you to answer without any reservations whatsoever.”

Mercieca then asked - to loud objections from the prosecution - whether the Europol code of conduct formed part of the witness’ contract. Reforming the question again, the court asked whether the witness’ work had been carried out under any regulations. “Yes, the Europol regulations,” replied the witness.

The magistrate abruptly terminated the cross examination. “You didn’t even tell the court what the point of the question was,” she said to the lawyer, before turning to the prosecution and warning them to “get their act together.” 

“If a witness is going to testify in front of me, he must testify about everything. How can he send me the rules about what he can and can’t testify about? I have never seen such vulgarity.”

“You are, all of you, missing the wood for the trees. There are bigger things with which you should be concerning yourselves with,” the magistrate told the prosecution.

Request to exhibit Fenech’s devices

At the beginning of the sitting, the court issued a ruling on prosecuting lawyer Marthese Grech’s request to formally exhibit Fenech’s electronic devices, which form part of the case file in the inquiry into the murder of Daphne Caruana Galizia, in the acts of the money laundering case.

Both the court and opposing counsel were evidently perplexed by the request, asking the prosecutor what this evidence was supposed to shed light on in terms of the money laundering case.

“I’m not understanding [the purpose of this request], much less am I going to exempt [the prosecution from justifying it],” defence lawyer Kathleen Calleja Grima said. “I have been a lawyer for 12 years, but this year we seem to have lost the meaning of formally exhibiting evidence. It is both here and it isn’t. I will have a note from the court saying that it is in the acts but when I go to look for it, the registrar is going to say that it’s not there…then I will go request the document [from the inquiring magistrate] and it will be refused.”

From the witness stand, a court deputy registrar explained that she had been asked to formally exhibit the acts of the inquiry into the fatal explosion in Bidnija 16 October 2017, together with an application to this effect filed with the judge and the subsequent decree upholding the request. The decree ordered that the acts be sealed and only shown to the lawyers of the parties.

Calleja Grima confronted the witness, telling her that she was informed that the inquiry was yet to be concluded.  Magistrate Frendo Dimech disallowed the question, as it was asking the witness to violate the secrecy of magisterial inquiries.

The defence lawyers dictated a joint objection to the exhibition of the inquiry, which had been formally exhibited during the sitting by the registrar, requesting that it be expunged from the evidence, while reserving the right to raise all the relevant defences in connection with the exhibition of this evidence, at a later stage.

Calleja Grima pointed out that she had already asked what the exhibition of the inquiry was meant to prove. The prosecution replied that it was “for the chain of evidence of the devices concerned, which had been exhibited in these proceedings.”

The court rejected the expungement request.

The sitting was adjourned to February.