Computer forensics experts who extracted data from Daphne Caruana Galizia’s phone and blog did not complete the tasks they were assigned in 2017, a magistrate said on Tuesday.

Four Europol experts who testified in the case against Yorgen Fenech all said that they were instructed to extract data from the devices provided to them by Maltese authorities, and had subsequently done so.

But each of the four also insisted, separately, that they were never told to analyse the data – despite that requirement being included in the magisterial decree that led to them being appointed.

One said he had not been given any data to analyse. A second said he believed the analysis was done by “someone else”. Another said “I didn’t go into any data traffic analysis in this case.” A fourth witness unequivocally stated, “I was never given a task to perform data analysis.”

The repeated testimonies, given in answer to questions by Fenech’s defence lawyer Charles Mercieca, prompted Magistrate Rachel Montebello to agree that a 2017 court decree to have data extracted, collected and analysed “was still incomplete”.

Fenech stands accused of complicity in the murder of journalist Daphne Caruana Galizia, who was assassinated by a car bomb planted and detonated by a trio of hitmen in October 2017.

He is pleading not guilty and his defence team has argued that obtaining an analysis of data on Caruana Galizia’s devices is an essential part of their case.

Yorgen Fenech (right) with one of his lawyers, Gianluca Caruana Curran, in 2019. Photo: Mark Zammit Cordina

The compilation of evidence against Fenech was initially concluded more than two years ago, but was reopened following a flurry of pre-trial pleas by Fenech’s defence team, who argued various witnesses not presented by the prosecution had yet to testify.

Of the four Europol experts who testified via video link on Tuesday, only one, Sami Harmionen, still works at the agency. Asked by Fenech’s lawyers if he would be able to perform “data traffic analysis” if given that task, Harmionen emphatically said no.

“No data traffic analysis is possible,” he said. “There was no data traffic because the devices were switched off.”

Just one of the four experts, Cordillo Torres, was optimistic about the chances of carrying out data analysis now. 

If he was given the devices and right equipment and as long as the data is not encrypted, the task could be done, Torres said. 

Keith Schembri’s office and tablet

Earlier in the hearing, the court heard how police searched Keith Schembri’s office at the Office of the Prime Minister 10 days after they arrested him in connection with the case.

Schembri served as chief of staff to prime minister Joseph Muscat at the time. Fenech’s lawyers have emphasised that information related to Schembri is very relevant to their case.

Inspector Charlot Casha, who was assigned the task of photographing Schembri’s office, told the court that he went there accompanied by three other inspectors – Keith Arnaud, who is now a superintendent, Kurt Zahra and Keith Vella – as he photographed the office.

Schembri himself, as well as an OPM official named Mario Galea, were also present.

Casha told the court that the search was carried out on December 5, 2019 and confirmed that Schembri was arrested on November 25. Under questioning from the defence, he said that it was not his competence to determine whether the office was sealed.

He recalled inspector Vella searching – and seizing – some documents from the office.

Schembri in his OPM office with Melvin Theuma, the self-confessed middleman in the murder.

Separately, the court heard how police were unable to extract data from a tablet computer seized from Schembri’s Mellieħa home because they could not find a charger for it.

The tablet, an ASUS model that was discontinued by the time a court expert drafted a report into data extracted from Schembri’s devices in 2020, used an unusual charger that officers did not find when they searched the house.

Court-appointed expert Keith Cutajar testified that he had tried to source a functional charger through the police’s forensics department and also looked for one online, but was unable to do so.

Europol experts unavailable

Two other Europol experts who were expected to take the witness stand on Tuesday were no-shows, with one reportedly on long-term sick leave and the other, Marinus Martin Van Der Meij, requiring clearance from the Dutch police as he has now transitioned there from the EU policing agency.

Maltese authorities have sent their Dutch counterparts a letter of request through Eurojust, prosecuting superintendent Arnaud said, adding that he expects approval to be issued within the week.

A portrait of Daphne Caruna Galizia is placed against the door of the Auberge de Castille. Photo: Jonathan Borg

Magistrate Rachel Montebello however noted that the 30-day period allowed for the reopened compilation of evidence will have elapsed by the time that happens.

Defence lawyer Charles Mercieca pounced on news of the prosecutorial delay, noting that the defence had wanted Van Der Meij to testify in the case years ago.

“My client is literally at the mercy of Dutch authorities now,” Mercieca argued, noting that Fenech has been held under arrest for the past four years.

With the clock ticking on the extension of the compilation of evidence stage, the magistrate ordered that the case be sent back to the Criminal Court.

That court, which will hear the case on December 15, will determine what the next steps are.  

Lawyers Charles Mercieca and Gianluca Caruana Curran appeared for the defence.

Anthony Vella and Godwin Cini from AG’s office led the prosecution, with the case’s previous chief prosecutor, Philip Galea Farrugia, having been approved for a magisterial post.  Superintendent Keith Arnaud and Inspector Kurt Zahra also prosecuted.