Yorgen Fenech’s murder case is about to take a crucial turn next week, with his personal phone and other electronic devices set to be presented as evidence over a year after his arrest.
Fenech’s devices are currently in the possession of Europol, who are set to send officials to testify and present their evidence on Monday and Wednesday.
Said to be a huge trove of data, one of the largest in Maltese legal history, this evidence could have implications both on the Daphne Caruana Galizia murder case and other financial crimes.
Fenech was a man with friends in high places who was heavily involved in crucial contracts, and several powerful people will surely be watching the upcoming developments closely.
How did we get here?
After Fenech’s arrest in November 2019, his phone and devices were sent off to Europol’s headquarters in The Hague for forensic analysis and transcription. They’ve remained there throughout the compilation of evidence against Fenech in court, but Maltese police and a special task force assigned to the Caruana Galizia murder have been given access to the data.
Local police have also assisted Europol in transcribing evidence from Fenech’s devices that was written in Maltese.
Fenech’s lawyers have repeatedly insisted that they be given access to this data too, arguing that they have a right to equality of arms and that evidence on it could even exculpate their client. However, these requests have so far been shot down by magistrate Rachel Montebello on the grounds that the defence don’t have a right to unlimited access to data which could be irrelevant to the murder case.
The original plan was for Europol officers to present the phone data at the start of October but this got pushed back due to legal developments.
As per law, the magistrate must dedicate a month of sittings to listen to witnesses as indicated by the Attorney General, after which they must send back the inquiry acts to the AG.
The AG must then decide whether to compile another list of witnesses for a further month’s worth of sittings or whether to issue a bill of indictment, which means the suspect will face trial.
However, the defence also has the right to demand the AG to request a series of sittings with witnesses indicated by their client, and Fenech’s lawyers exercised this right in September and October.
Europol wasn’t named as a witness in either request, but with the prosecution not naming specific Europol officials working on the case, it’s unclear how the defence could have summoned them as witnesses.
Fenech’s lawyers tried to file a third request for witnesses to the AG at the start of November, but the AG had already sent back the acts of inquiry a few hours earlier.
This paved the way for the court to dedicate two upcoming sittings to the testimony of Europol officials.
Why is the timing important?
The murder case against Fenech is being heard in parallel with a public inquiry which is trying to establish whether Caruana Galizia’s assassination could have been prevented.
The inquiry’s terms of reference come with a nine-month deadline, but with a proviso about “the proper fulfilment” of the terms which grant it flexibility. In September, Prime Minister Robert Abela announced he had granted it a “one-time extension” to 15th December on the grounds that the courts had to shut down when the COVID-19 pandemic broke out.
However, this statement was criticised by the Council of Europe as “blatant political interference” and the inquiry board confirmed it intends to carry on with its work beyond the Prime Minister’s ‘deadline’ if necessary.
Caruana Galizia’s family have also argued that the inquiry board, and not the Prime Minister, should decide if any further extensions are necessary and the upcoming presentation of Yorgen Fenech’s phone court will certainly help their case.
For while a lot of communications between Fenech and people in positions of power may be irrelevant to the murder case or other police investigations, it will certainly be relevant to the public inquiry. Abela will have a hard time justifying why the public inquiry should be forbidden from listening to this new evidence.
So what can we expect from these chats?
While most of the data has been kept under lock and key, there have been some reports about what it contains.
Shortly after Joseph Muscat announced he was stepping down as Prime Minister last December, Lovin Malta revealed that he and Fenech had exchanged frequent text messages of a friendly nature, during a period when Fenech was already the prime suspect under investigation and Muscat was being fully briefed by the security services.
Lovin Malta then exposed how Fenech, former Prime Minister Joseph Muscat, and former Prime Minister’s chief of staff Keith Schembri shared a secret WhatsApp group.
Muscat and Schembri left the group about a month before Fenech’s arrest, soon after finding out that police planned to apprehend middleman Melvin Theuma.
Well-informed sources have previously revealed that there could be between 800 to 1,000 messages between Schembri and Fenech.
We also know that Fenech exchanged hundreds of messages with Justice Minister Edward Zammit Lewis, and a few messages with former Opposition leader Adrian Delia.
Claims by one of Caruana Galizia’s sons that Fenech had an affair with an unnamed Cabinet member also likely emanate from these chats.
However, this is very likely just the tip of the iceberg.
Superintendent Keith Arnaud recently testified that data from Fenech’s phone has given police new leads on people who are potentially linked to the murder.
Meanwhile, Fenech’s defence team believe the data, as well as the data in Melvin Theuma’s phone, could completely exonerate their client.
Fenech has told police that Keith Schembri contributed €85,000 towards the murder, that the then OPM chief of staff had tried to help him escape Malta, and that he had discussed the murder with Joseph Muscat after the fact, claims that have been refuted by Muscat and Schembri.
The murder suspect has also insisted he had no intention of escaping Malta and that, when he was arrested on his yacht last year, he was simply traveling to Sicily for a scheduled maintenance visit, a version of events that has been backed up by the yacht’s captain.
Police have also opened at least eleven other investigations into suspected crimes after analysing the data.
Whether any of these relate to the ElectroGas power station, the Montenegro wind farm project or Fenech’s infamous Dubai company 17 Black remain to be seen.
However, Keith Schembri and former Energy Minister Konrad Mizzi were reportedly questioned about their chats with Fenech when they were recently arrested and interrogated by the financial crimes police.
Lovin Malta is informed that these chats are far-reaching, impacting a number of businessmen, politicians and people in public life.
It remains to be seen how the data will be processed – whether the magistrate will keep it for herself and only instruct the prosecution to present the parts that are relevant to the murder, whether a data room will be set up for the prosecution and defence to collectively sieve the relevant chats from the irrelevant ones, and whether the public inquiry will request a copy of Fenech’s chats with people in positions of power.
One thing is certain; although it’s been a year since Yorgen Fenech’s arrest, the fallout has only just begun.