Lawyers representing Yorgen Fenech on Wednesday sought to poke holes in the prosecution case ahead of the Daphne Caruana Galizia murder trial, raising questions on the role of Europol officers in the investigation.

Arguments were made in a court sitting lasting almost six hours during which pre-trial pleas were heard.

Fenech has been accused of complicity in the October 2017 car-bomb murder. He has pleaded not guilty.

Lawyer Charles Mercieca said the Europol officers were selected by the Malta police and therefore their independence and impartiality as “the long arm of the court” was doubtful.

Worse still, those experts had organized the whole investigative setup and were handed Fenech’s mobile phone even before their appointment had been authorised by the court.

The next day, the investigators filed an application before the magistrate conducting the inquiry, seeking that authorisation.

“They had probably been appointed earlier in the murder inquiry that was still ongoing, and therefore their appointment was extended,” pointed out presiding judge Edwina Grima.

But the lawyer rebutted that their formal appointment appeared to have come about as “an afterthought.”

He said the Europol expert had not simply taken possession of Fenech’s devices but had engaged in interaction by instructing that the phone be switched to flight mode, thus possibly signifying loss of data.

Another female officer, not appointed as expert by the court, had received Fenech’s mobile in the Netherlands in an unsealed evidence bag and acting under directions from her superiors had used “brute force” to access the device.

She took instructions from her line manager rather than the inquiring magistrate and also reported to her superior about a confidential court inquiry, thus allegedly breaching criminal law.

“There’s a code of conduct binding experts,” said Mercieca, pointing out that the defence had never managed to cross-examine these experts because the compilation of evidence was cut short by the issuing of the bill of indictment.

The lawyer voiced “serious concerns” about the chain of custody concerning Fenech’s mobile phone, from the minute it was seized upon his arrest.

Normally, he said, exhibits such as this  would be sealed in an evidence bag bearing clear information about the date and location as well as the signatures of both the police officer and the person from whom it was seized.

But in Fenech’s case, most details were lacking and according to the signature on the bag, the phone was “seized by” Fenech himself.

Some three other signatures scribbled on the bag did not indicate who had actually seized the phone.

This was “very serious” especially when considering that the device was said to contain data which led to resignations by certain persons, remarked Mercieca, occasionally edged on by his fellow counsel, Gianluca Caruana Curran. 

Yulia Toma, the expert who received the phone at Europol headquarters had testified that the device was handed to her in an unsealed bag.

Another bag labeled “evidence sealed. Do not tamper” with red tape running along one edge, was perforated.

“Who did that?”asked Mercieca, as the judge observed the plastic evidence bag among the exhibits, confirming the hole referred to by the defence.

“Had we not checked the exhibits, we would not have known about this clear tampering with the evidence bag,” stressed the lawyer.

And how was it that Fenech’s wife got calls from that phone when the device was meant to have been inside a Faraday room, isolated from the network, went on Mercieca.

Another request for bail

With few pleas left to tackle, the court heard fresh submissions on bail.

It has been 800 days since Fenech’s arrest and were it not for the fact that this was Yorgen Fenech the accused would have likely been granted bail, the lawyer said.

“We urge the court to strike a balance. If not now, then when?”

The court will deliver a decree on bail in chambers.

The case continues in April.

Lawyers Gianluca Caruana Curran and Marion Camilleri were also defence counsel.

Deputy AG Philip Galea Farrugia prosecuted.

Lawyers Therese Comodini Cachia and Jason Azzopardi represented the victim’s family.