Appeals Court dismisses Yorgen Fenech’s claim his rights were breached by assets freeze

Malta’s highest court has upheld the rejection of Yorgen Fenech’s claim to have suffered a fundamental rights breach due to his assets being frozen.

The judgment which comprehensively dismantles every ground of Fenech’s appeal was delivered by Chief Justice Mark Chetcuti and judges Giannino Caruana Demajo and Anthony Ellul in the Constitutional Court. It comes just over one year after Mr Justice Grazio Mercieca had originally dismissed the wealthy businessman’s claim.

Fenech is awaiting trial on indictment for allegedly procuring the murder of journalist Daphne Caruana Galizia, who was assassinated in a car bomb explosion outside her home in Bidnija on 16 October 2017.

He has been in custody since his arrest in late November 2019, whilst trying to leave the Portomaso marina on his yacht, the Gio. Fenech was arrested less than 24 hours after a pardon was announced for the middleman in the murder, Melvin Theuma, in return for Theuma’s cooperation in the murder investigation. Fenech’s multiple bail requests have all been denied.

Fenech is also charged in separate proceedings, in which he is accused of money laundering. It was in connection with these ongoing proceedings, that Fenech’s assets were frozen at the order of the court.

Mr Justice Grazio Mercieca had originally dismissed the wealthy businessman’s claim that his human rights were breached.

Fenech had complained that the court of first instance had decided the case in such a way as to prejudice the possibility of having recourse to other remedies, and that there were conflicting dispositions in the judgment.

The judges gave short shrift to this argument. “There is no conflict in the dispositive part of the judgment,” ruled the Appeals Court, pointing out that the paragraphs which Fenech was alleging to be contradictory referred to different issues.

His second ground of appeal, alleging nullity due to lack of explanation as to the legitimate aims of the freezing order, was also rejected, with the judges not mincing their words. The court noted that the court of first instance had explained that the intention behind the order was legitimate in that it was aimed at preventing a person accused of a relevant crime from making use of money or property derived from criminal activity or deriving any other direct or indirect benefit from it.

“An order intended as a deterrent to criminality and therefore there is no doubt that the aim is legitimate,” that court had said. “This means that the plaintiff’s complaint that no motivation was given for the judgment is baseless,” ruled the judges.

Another reason to overturn the initial rejection, Fenech’s lawyers had argued, was that no form of benefit, economic advantage, property or monetary gain to the plaintiff deriving from the murder with which he was indicted, had been identified.

The judges observed that in his reply, the State Advocate had argued that any advantage that Fenech had gained from the Caruana Galizia murder, was considered as profiting from it.

Although to date there was no evidence that Fenech had made any financial profit from the crimes he is accused of, and neither was it mentioned in his bill of indictment, that case was still ongoing, said the court.

“The freezing order is serving as a guarantee for the eventual confiscation of the proceeds of the crimes which the plaintiff is accused of, should guilt be found. The fact that so far the precise motive for the murder of Caruana Galizia which shows he profited from it, has not been identified does not mean that there was no financial purpose for it.”

At the time of her murder, Caruana Galizia had written about and had been investigating the granting of a contract for the construction of a power station to Electrogas Malta Limited, noted the judges, which Fenech – a prominent businessman who had been involved in the leadership of his family-owned business empire, as well as being a director of Electrogas Malta Limited, amongst other things – stood to gain from.

No evidence had been submitted to back up Fenech’s claim that he was encountering difficulty to carry out business or honour his financial obligations, noted the judges, and neither had he explained what was stopping him from simply requesting a variation to the freezing order.

Finally, the Criminal Code did not contemplate the revocation of a freezing order until the conclusion of criminal proceedings, said the court, dismissing the appeal.

Lawyers Charlene Camilleri Zarb and Maurizio Cordina represented the State Advocate in the proceedings. Lawyer Charles Mercieca assisted Yorgen Fenech.