Constitutional court rejects Yorgen Fenech's appeals on disclosure, Arnaud

The Constitutional Court has dismissed two constitutional appeals filed by murder suspect Yorgen Fenech, who is awaiting trial for allegedly masterminding the assassination of journalist Daphne Caruana Galizia.

Fenech had claimed that his right to a fair trial was breached in two separate issues: lack of disclosure of evidence and the involvement of Assistant Police Commissioner Keith Arnaud in the investigation.

Appeal on Disclosure Dismissed

Fenech first filed a constitutional application in December 2021, arguing that the prosecution’s failure to disclose all evidence against him breached his right to a fair hearing. The First Hall of the Civil Court had rejected this claim, stating it was premature since criminal proceedings were still underway and ordinary remedies remained available.

Fenech appealed, arguing that the lower court had incorrectly exercised its discretion and failed to consider that all other remedies had been exhausted. However, the Constitutional Court upheld the lower court’s decision. It stated that Maltese law provides disclosure remedies through the Criminal Court or the Court of Magistrates. Fenech had already raised similar complaints before the Criminal Court in his preliminary pleas, which were decided and appealed.

The court also emphasised that constitutional proceedings cannot be used as a "fishing expedition" to obtain investigative material not directly relevant to the plaintiff’s case. Fenech, the court ruled, should specify the information he seeks and use appropriate judicial forums to raise his concerns.

No evidence Arnaud lacked impartiality

Fenech’s second appeal challenged the involvement of Keith Arnaud in the investigation. The application, originally filed in November 2019, alleged a breach of rights based on claims that Arnaud was too close to Keith Schembri, the former Prime Minister’s chief of staff and someone Fenech has accused of being the real mastermind behind Caruana Galizia’s murder.

Fenech argued that Arnaud could not be impartial, citing alleged ties between Arnaud and Schembri, including a claim that Schembri helped Arnaud’s wife secure a job. He also alleged that Arnaud shared confidential case information with Schembri.

The Constitutional Court reviewed the case history and found no evidence of a personal relationship between Arnaud and Schembri. Testimony showed that any interaction between the two occurred in formal, professional settings—particularly during logistical meetings held at the Office of the Prime Minister following the removal of Deputy Commissioner Silvio Valletta from the case.

Arnaud testified that information shared during these meetings was limited to logistical concerns, especially those with diplomatic implications. He stated that he had limited interaction with Schembri outside these meetings and denied sharing investigative updates.

Fenech’s lawyers pressed Arnaud during cross-examination on whether he gave updates in Schembri’s presence. Arnaud categorically denied this. The Constitutional Court noted that if Fenech’s allegation of a close personal relationship between Arnaud and Schembri were true, there would be no need for Arnaud to share information via formal meetings.

The court also remarked that Schembri, given his powerful position and connections, would have had access to sensitive information regardless of Arnaud’s role. It referred to testimony by former Police Commissioner Lawrence Cutajar and noted that other high-ranking officials with conflicts of interest were also involved in the investigation.

Valletta case not comparable

In his appeal, Fenech argued that the court should have taken the same line as in the case instituted by the Caruana Galizia family which resulted in Valletta’s removal.

The Constitutional Court observed that the Caruana Galizia family had claimed a breach of rights due to Valletta’s direct involvement in the investigation. Valletta was at the time the husband of a cabinet minister, Justyne Caruana, and they were the subject of some of Caruana Galizia’s articles. He also sat on the board of the Financial Intelligence Analysis Unit. These arguments were raised without casting a doubt on his professional capabilities. The court had upheld the request.

When analysing the judgements and Fenech’s application, the Constitutional Court held that a superficial reading of the premises on which the two separate applications were filed are identical. However, this was only to a certain extent: they both addressed the same offence, investigations and authorities. They were similar in the fact that they were aimed at a particular police official. However, this is where the similarities stop.

In Valletta’s case, both the court of first instance and the Constitutional Court ruled Valletta had a conflict of interest. Unlike Arnaud, Valletta was married to a politician and member of the Cabinet, and sat on the FIAU board. Caruana Galizia had written on both Valletta and his then wife, as well as the FIAU.

From the evidence, it emerged that the family had several meetings with Arnaud and inspector Kurt Zahra. They testified that they had a good relationship with him and the journalist’s children said Arnaud and Zahra have their trust.

On Fenech’s allegation that Arnaud’s wife landed a job after Schembri intervened, the court referred to the testimony where it had emerged that she had applied along with someone else. They were both chosen after successfully passing their interview.

The family of the journalist passed on documents on stories and individuals Caruana Galizia had been investigating before she was assassinated. Among them, she had been investigating Schembri. The court observed that despite Fenech tried to cast doubt on the route taken by the investigators, Arnaud had repeatedly said that they focused their energy on the evidence at hand. This was done also because there were several parallel investigations.

Theuma's testimony and change in strategy

Once Melvin Theuma, the middleman between the person who commissioned the assassination and the three convicted hitmen, was arrested, the police got to more suspects, including Fenech.

The Constitutional Court acknowledged that Theuma mentioned Schembri, albeit superficially. It held that it was only when Fenech changed his version that the investigators had solid information about Schembri’s alleged involvement. From Arnaud’s testimony it emerged that Fenech changed his version when Theuma was given a presidential pardon in exchange of his testimony.

It observed that Fenech complained that the court of first instance lent more credibility to Arnaud’s testimony than to his. The court observed that Arnaud’s testimony was and remained consistent, credible and gave plausible reasons for the decisions taken by the team.

The court acknowledged that that there were certain shortcomings by the authorities but Arnaud’s cautious approach in investigating and eventually arresting Schembri cannot be interpreted as some indication of lack of objectivity of favouritism towards Schembri. It also observed, like the court of first instance, that Fenech did not immediately complain about Arnaud’s involvement in the investigation. It was only after his second pardon request was rejected that he complained and even proceeded to file a warrant of prohibitory injunction which was turned down by the courts.

The court held that Fenech’s complaint was unfounded and not substantiated. It did not find any evidence that showed Arnaud was not impartial or lacked objectivity in his actions.

The appeal was dismissed and Fenech was ordered to pay the costs.

Chief Justice Mark Chetcuti,  judges Giannino Caruana Demajo and Anthony Ellul presided in both cases.

Lawyers Charles Mercieca and Gianluca Caruana Curran assisted Fenech.

Lawyers Maurizio Cordina and Carina Bugeja Testa appeared on behalf of the State Advocate's Office in the disclosure case while lawyer Miguel Degabriele assisted Cordina in the breach of rights claim over Arnaud's involvement.