A judge has ordered a police investigation into how the latest bail application filed by alleged murder mastermind Yorgen Fenech was leaked to the media soon after it was filed in court.

Madam Justice Edwina Grima ordered the investigation upon a complaint by Fenech’s lawyers, Charles Mercieca and Gianluca Caruana Curran, who raised the matter during a hearing on Wednesday.

Mercieca was making submissions during a pre-trial hearing. Fenech is awaiting trial for allegedly masterminding the murder of journalist Daphne Caruana Galizia in October 2017.

Mercieca said the defence team was startled when it learnt that the bail application it had just filed was soon after published online, before the defence had the opportunity to make oral submissions in court. He demanded that action be taken about the leak, insisting that this was not the first time that this had happened.

Madam Justice Grima upheld the request and ordered the Police Commissioner to initiate an investigation into the leak and inform the court about how the media was getting information about acts exhibited in the case, especially since only the parties to the case were privy to such applications.

Mercieca reminded the court that in 2021, the court had ordered the prosecution of persons who had leaked evidence from a compilation of evidence.

The lawyer drew parallels with “the same modus operandi” used in Slovakia, a reference to the acquittal of a businessman charged with his involvement in the assassination of Slovak journalist Ján Kuciak and his girlfriend. He pointed out that in that case, the Slovak state had been found to have been responsible for the leaking of evidence to the media.

To this end, the judge also ordered the police to investigate and prosecute anyone who had breached her previous order prohibiting the publication of evidence and documents from the criminal case.

During the same sitting, Mercieca argued that it did not make sense that the Attorney General was still using the same argument of 2019 to continue objecting to his client being granted bail. “That was 2019 and now we’re in 2024 and the arguments have not changed,” he complained.

He said that when legislators had introduced a 20-month limit on compilations of evidence, the intention was for defendants not to spend more than that time in preventive custody. In this case, the Attorney General circumvented this and issued a bill of indictment just 40 days before this period was up.

“Had the AG not issued the bill of indictment in the manner she did, Fenech would be on bail right now,” Mercieca said.

Fears that Yorgen Fenech will abscond

Prosecutor Anthony Vella, representing the Office of the Attorney General, said the prosecution’s argument in objecting to bail had been a consistent one and based on Fenech’s previous attempt to abscond when he became aware that the investigations were zooming in on him.

Now that his trial is so close, that risk was much greater, he added.

He referred to Fenech’s chats with his uncle Ray in 2019, in which they had explored the possibility of leaving Malta by air, making inquiries about flights and speaking to a private jet pilot, but later decided that it would be better to escape by sea.

Fenech had connections with people involved in criminal organisations, he added, leading to objections from the defence team.

Besides the risk of Fenech absconding, there was also the risk that he would attempt to tamper with evidence, Vella added.

He also mentioned that Fenech had filed a request for a presidential pardon, which he said was an indication of involvement. 

Mercieca retorted that there was complete silence from the prosecution on third parties being mentioned in connection with this case, and who were currently not in custody. He insisted that his client was still presumed innocent and that other people mentioned in this case, such as Keith Schembri and Chris Cardona were still free.

Loopholes in new law

Earlier in the sitting, during submissions on the reduction of the freezing order imposed on Fenech, Madam Justice Grima criticised the new law passed by parliament recently that caps a freezing order on the amount believed to have been made illegally. The judge said this law had too many loopholes and that members of the judiciary were at a loss on how to apply it, especially on pending cases.

“How can I decide on limiting a freezing order unless I hear and decide on the merits of the case? This does not make any sense,” she remarked.  

She adjourned the case to Friday and said that a decree on the bail request would be delivered in chambers.

--