Yorgen Fenechs constitutional case over disclosure filed prematurely, judge rules
Court declares that the defendant's entitlement to the disclosure of relevant evidence was not an absolute right, but one which had to be weighed against the interests of national security and witnesses at risk of reprisals, amongst others.
A judge has decided not to proceed further with a constitutional case filed by Yorgen Fenech, who is awaiting trial for allegedly commissioning the murder of journalist Daphne Caruana Galizia, in which he is claiming to have suffered “manifest prejudice” to his fair trial rights through what he said was the police’s failure to disclose all of the relevant evidence in their possession to his defence.
Fenech had filed the constitutional application in December 2021, shortly after he was indicted for complicity in the journalist’s murder. The court filing states that the police had only revealed a limited selection of the evidence collected during the investigation, which he said had been hand-picked by the prosecuting official.
Fenech alleged that he had not been granted disclosure of recorded conversations between Melvin Theuma and Edwin Brincat, declarations and statements by other witnesses who had been investigated in connection with the proceedings against Fenech, as well as their mobile data and finally, data extracted from Daphne Caruana Galizia’s mobile phone and Keith Schembri’s electronic devices.
This, Fenech’s lawyers had said, contravened a direct order by the Court of Magistrates, as well as the police’s duty to grant the defence access to all the evidence it had collected, including evidence which they did not intend to exhibit as prosecution evidence because it favoured the person accused.”
The lawyers had asked the court to declare that Fenech had suffered a breach of his right to a fair hearing and provide an effective remedy that would safeguard his fundamental rights in the circumstances.
In their reply, filed in January 2022, the State Advocate and the Commissioner of Police denied Fenech’s allegations and related claims. The main thrust of their rebuttal was that Fenech could not claim that his fair trial rights had already been breached because the proceedings against him were still far from over and jurisprudence had established that could proceedings had to be examined “in their totality” in order to find possible breach.
Fenech’s complaint was already addressed by a remedy codified in the law, added the respondents. If a person felt they had not been given full disclosure by the police, they had the option to apply to a court or magistrate, who would then be obliged to listen to what the prosecution had to say on the issue before deciding whether access to the evidence should be granted or refused.
The claim was dismissed in a judgement handed down on Friday by the First Hall of the Civil Court, presided over by Madam Justice Audrey Demicoli.
The judge, citing case law from the European Court of Human Rights, observed that the entitlement to disclosure of relevant evidence is not an absolute right, citing an ECHR judgement in which it was held that “in criminal proceedings there may be competing interests, such as national security or the need to protect witnesses who are at risk of reprisals or to keep secret the methods used by the police to investigate crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.”
The doctrinal “strict necessity” test of non-disclosure, coupled with the established restrictions on the use of other forms of secret evidence suggested that any non-disclosure of evidence would not breach the defendant’s fundamental rights “so long as that piece of evidence is not used to a decisive extent to form a basis for the conviction or is not a crucial piece of evidence in the case.”
In a judgment handed down on Friday, Judge Demicoli concluded that the right to disclosure was a qualified right, in which the court had the final say as to whether the prosecution had a valid reason to withhold access to certain documents or pieces of evidence from the defence.
The judge also noted that in the time since the case had been filed, no less than fifteen further witnesses had testified in the compilation of evidence against Fenech, adding that it was therefore evident that there was yet more evidence to be compiled.
“In the Court’s opinion, the applicant should have at least waited for the conclusion of the evidence at compilation stage before alleging a breach of his fair trial rights, in view of the fact that it is impossible for this court to carry out an appreciation of the applicant’s allegations at a stage when the picture is still incomplete.”
The court abstained from taking further judicial notice of Fenech’s requests, which it said, were premature in view of the fact that the criminal proceedings against him were still ongoing, urging him to, instead, make use the legal remedies available to him at this stage of criminal proceedings.
Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca assisted the plaintiff. The defendants were represented by lawyer Charlene Camilleri Zarb.
Related
Share this page
Guest Posts by Easy Branches
