Yorgen Fenech’s rights have not been breached through repeated denial of bail as his continued detention was grounded on relevant and sufficient reasons, the Constitutional Court declared on Wednesday.

The former businessman, currently awaiting trial for his alleged complicity in the murder of Daphne Caruana Galizia, had filed an appeal against a judgment delivered in April which turned down his claims over “arbitrary objections” to his release.

Fenech has been under preventive custody since November 2019 when he was arrested on board his yacht, shortly after sailing out from Portomaso Marina. 

Delivering judgment, the court observed that Fenech was not challenging the validity of the original arrest but the repeated denial of bail.

His lawyers had accused the first court of lacking impartiality, its considerations showing that he was not presumed innocent. 

However, the Constitutional Court observed that the first court had expressly taken into account the appellant’s presumption of innocence and the fact that the serious nature of the criminal charges alone was not sufficient to deny him bail. 

A careful and faithful reading of the appealed judgment, rather than selected passages taken out of context, showed that the first court had carried out an impartial analysis, taking into account factors that were both in favour and against the appellant.

Nor did the Constitutional Court agree with Fenech’s argument that the decrees delivered by the criminal courts were “stereotyped” and aimed at denying him bail. 

On the contrary, those decrees were always well-reasoned and detailed, taking into account any fresh evidence produced at different stages throughout the criminal process. 

The latest among such decrees had been based on the fear of tampering with evidence as well as the fear of absconding. 

And the court’s refusal of bail was based on “concrete reasons justifying those fears”.

Chats and messages extracted from the appellant’s mobile phone, produced in evidence, were not “documentary hearsay” as argued by Fenech’s lawyers. 

Indeed, that data had been extracted by a court expert and presented in evidence without Fenech raising any objections. 

Those chats and messages showed, at least on a prima facie basis, that Fenech was actually preparing a plan of escape at the time of his arrest. 

He had discussed that plan with some family members, telling his mother that she was his only tie to Malta.He had expressed his wish to move abroad, taking with him his wife and children.

In fact, some months prior to his arrest, Fenech had been seriously considering a move to the USA and was scouting for property, even engaging a company to draw up a report on how he could tackle practical day-to-day issues, such as his children’s schooling. 

He had also expressed a wish to divest himself of his share in the family business and leave Malta.

At that time, Fenech also set up contact with a third party to help him rent property, not in his name, with access to a helicopter. 

There was discussion about a private flight with no identity checks, costing thousands of euros. 

Following his arrest, his assets had been hit by freezing orders. 

But such court orders were not enough to reduce the prosecution’s fears since Fenech had other funds in accounts outside Malta and the EU which could not be subject to such orders.

Moreover, his relatives appeared disposed to help him, the court observed. 

For a person of substantial means, it was easier to abscond so it was not only justified but also necessary to consider Fenech’s means.

The court also noted that Fenech had somehow obtained a screenshot of the presidential pardon granted to self-confessed middleman Melvin Theuma.

Investigations into the journalist’s murder were still ongoing and there was nothing to indicate that they were not being conducted diligently, said the court.

When all was considered, the court, presided over by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul, concluded that Fenech’s continued detention was based on relevant and sufficient reasons, thus rejecting his appeal. 

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri assisted the appellant. Lawyers Therese Comodini Cachia and Jason Azzopardi appeared on behalf of the Caruana Galizia family. State Advocate Chris Soler and lawyer Maurizio Cordina represented the State.