Prosecution insists Europol cannot testify on all aspects of Yorgen Fenech money laundering case

Europol witnesses insist that they should not testify about certain aspects of their investigations, but this is not sitting well with the magistrate

The money laundering case against Yorgen Fenech, Joseph Cachia and Nicholas Cachia made no progress this morning, after the prosecution continued to insist that its own expert witnesses from Europol do not testify about certain aspects of their investigations.

Fenech, who is separately indicted over the murder of Daphne Caurana Galizia, is accused, together with the Cachias, of laundering around €45,000 between April and October 2019, concealing the provenance of property, knowing it was the proceeds of criminal activity and the use of property acquired through criminal activity. Fenech was also accused of complicity in these crimes under the Money Laundering Act and the Criminal Code.

He is also charged with misappropriation to the detriment of Glimmer Ltd and defrauding the company. Glimmer Ltd is majority-owned by a company in which Fenech and his uncle Ray Fenech hold equal shareholding.

In a previous sitting, last month, the prosecution had exhibited a request it had received from Europol, in which the pan-European crime fighting agency had specified restrictions on its witnesses, in what is thought to be a bid to protect sensitive operational details from becoming public knowledge. That request, which stated that the information requested must not jeopardise Europol investigations and that personal data and information provided to Europol may not be testified about unless the originator’s consent is obtained prior to the testimony, had been shot down by the magistrate.

But when the case resumed on Monday, it was evident that the positions had only become further entrenched. 

“A witness cannot be selective,” said Magistrate Frendo Dimech, after being told that Europol was insisting on limiting the scope of the expert’s testimony. “Only the court can give this dispensation,” explained the magistrate, telling the prosecution that an expert witness appointed by the court takes orders from that court and not his employer. 

Defence lawyers Kathleen Calleja Grima and Charles Merceica jointly asked the court to order the prosecution to formally declare that the Europol witnesses required prior authorisation every time they give evidence before this court, so that it could be recorded in the acts of the case as the reason for which these witnesses could not testify today.

The court repeated what it has been saying since November last year, that is, that as soon as the experts had accepted the role they were appointed to by the inquiring magistrate, they were stripped of “any responsibility or loyalty or obligations” towards their private employment, in this case with Europol, and are solely experts of the court, insofar as the case is concerned. In their regard, the court said, Maltese procedural law applies exclusively, “with all the consequences that those laws, together with our jurisprudence, provides.”

AG lawyer Marthese Grech, informed the court that the prosecution would be resting on its previous submissions. She pointed out that these witnesses had taken the witness stand during the January sitting, but had ended up not testifying because of what was said during that sitting.” “The reason why they didn’t testify is because we weren’t clear on what we could do and were expecting direction from the court,” she said. The magistrate pointed out that this was not what they had said in their email.

“Further authorisation may be required, but may also entail disclosing restricted information…” the magistrate read out, adamant that the witness no longer had the obligation to maintain secrecy. The court could hear the Europol witnesses behind closed doors if necessary, she said.

“At no point did we say that they are not going to testify to the whole truth,” insisted Refalo. The court then asked him what was the intention behind the email. “The attached letter clearly explains, “ he began, but was stopped by the magistrate, who said that the court had not taken judicial notice of that letter.

Many assumptions were being made, rued the lawyer. The magistrate, however, was unmoved. “Nobody is going to be exempted from anything by this court,” said Magistrate Frendo Dimech, stressing that the case file was the property of the court and urging the prosecution not to “paint them [Europol] in a bad light.”

Lawyer Edward Gatt made a request for the variation of the freezing order over his client. Mercieca suggested that the prosecution was not going to issue a bill of indictment. Grech replied that this had only been said informally and not in the prosecution's submissions.

The magistrate once again ordered that the witnesses be summonsed, adjourning the case to next week.