Court orders ‘missing’ Europol report be presented in Yorgen Fenech murder case

A “missing” Europol report completed in 2018 on the possible scenarios which led to the assassination of Daphne Caruana Galizia will need to be presented in court once again.

The report was compiled using data extracted from a cloned mobile phone belonging to Caruana Galizia. The phone had been destroyed in the October 2017 car bomb which claimed the journalist’s life, but experts had managed to clone the device.

The document, reportedly unseen by the lead investigator, is conspicuously absent from the evidence compiled against Yorgen Fenech, who awaits trial as a suspected accomplice in the journalist's assassination.

Testifying during the resumption of the compilation of evidence, the report’s author, a Europol expert, refused to give details unless the “handling codes” had been lifted.

Marinus Martin Van Der Meij, originally anticipated to appear in court in person, testified remotely via video link. He confirmed delivering a physical copy of his report to Magistrate Anthony Vella, who appointed him in March 2018.

Following his short testimony, a discussion ensued, prompting Superintendent Keith Arnaud, the murder investigator, to assert firmly that he had recently become aware of this report.

He affirmed under oath that he had never had the document in his possession and was unaware of its contents.

READ ALSO: Court to rule on redaction of Caruana Galizia phone data to protect sources

As the debate ensued, the defence and parte civile lawyers accused each other of allegedly leaking sensitive material to the press.

Fenech’s lawyer, Charles Mercieca, claimed that the absence of this report from the records amounted to “suppression of evidence,” parte civile lawyer Jason Azzopardi remarked that “an innocent person would not ask for a pardon".

Report protected by ‘handling codes’

The former Europol expert said he had completed his task and handed over a physical copy of his report to the magistrate on 22 May 2018, during one of his trips to Malta. But the document was nowhere to be found in the case records.

Defence lawyer Charles Mercieca explained that he had personally sifted through “70 volumes” of documents but that particular report was not there.

The report's objective included analysing various scenarios to uncover potential motives and individuals behind the journalist's assassination. When questioned about this, Van Der Meij declined to disclose specifics, citing that the report was "protected by handling codes."

Queries about the elusive report initially emerged during constitutional proceedings where Fenech alleges that the prosecution violated his fundamental right to a fair trial by withholding specific evidence.

When summoned at Fenech’s compilation of evidence, under an express decree of the Criminal Court, the expert still refused, saying that the report was “protected” and that he had pointed out the Europol “handling codes” to then-Magistrate Vella when handing it over.

“As far as I know none of those codes were lifted. I’m not aware of it. If they were, I have no problem testifying,” said the witness, adding that he no longer worked at Europol.

Mercieca rebutted by saying he was bound by law to testify on the report.

“I was an expert of the Maltese court but also an expert for Europol... I also have to follow Europol rules on sharing intelligence… I completely understand… But the report was classified and protected and I cannot speak about its contents unless someone tells me that the codes have been lifted,” insisted Van Der Meij.

Court says ‘missing’ report must be presented

Following confirmation that Van Der Meij had been court-ordered to produce the document, Magistrate Rachel Montebello noted this as the path forward.

The Magistrate further stipulated that the expert was now released from confidentiality constraints regarding the disclosure of the report's contents, emphasizing it should be presented "completely as on May 22, 2018."

However, the logistics of this presentation remained uncertain due to the expert's departure from Europol.

The defense claimed knowledge of the report's whereabouts, noting its leakage to journalists who covered its contents recently, as highlighted by parte civile lawyer Azzopardi.

“You leaked it,” Mercieca hit back, adding that “the media has scourged Yorgen Fenech, and that includes the parte civile too”.

Azzopardi countered that there was no level playing field and that he was only safeguarding the rights of the victim’s family.

‘He who is innocent does not ask for a pardon’

Lawyer Jason Azzopardi, on behalf of parte civile, registered that in its submissions, the defence said they know the location of the report.

The parte civile, to safeguard their constitutional rights, registered what is claims is the unequal playing field between the defence and the parte civile, and that while the defence may invoke article 550 of chapter 9 of the criminal code, the parte civile has no remedy for the fact that members of the jury will not be allowed to know that the accused has made several requests for a presidential pardon for murder in connection with this case.

“He who is innocent does not ask for a pardon,” Azzopardi told the court.

The case continues.

AG lawyers Anthony Vella and Godwin Cini, together with Superintendent Arnuad prosecuted.

Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are defence counsel.

Lawyers Jason Azzopardi and Therese Comodini Cachia are representing the victim’s family.