Despite getting bail more than a week ago, Yorgen Fenech has still not walked out of prison, and it could be a few more days before he sleeps at home – all because of an arduously technical procedure that has stalled his release.

Fenech was granted bail on January 24 after his aunt, Moira Fenech, told the court she was willing to serve as a guarantor for her nephew in case he breaches bail conditions.

That guarantee was her share in Tumas Group, which was valued at just over €52 million in 2022.

Lawyers who spoke to Times of Malta said they were unable to cite any previous cases in legal history with comparable sums required for bail.

Yorgen Fenech will only be allowed out of Corradino Correctional Facility once his aunt has signed an agreement pledging her shares in the Tumas Group to the government.

Usually, those charged get bail in exchange for money and walk out of prison a few hours or a day later.

But the pledging of shares is not common practice, with lawyers saying they could not recall any other instances in which a court required shares to be put up as collateral for bail.

The law, however, does not preclude it.  But the procedure is arduously technical, as per Article 122 of the Companies Act.

Unlike with cash, which can be deposited directly in court, shares need to be promised and pledged to the state via an agreement between Moira Fenech and the government.

They must agree on the value of the shares and the government must be assured that their declared value will not drop. Moreover, if bail is breached, the government needs to know how to gain control of that wealth and how – and to whom – it can sell it to get the money it is owed.

Yorgen Fenech has spent five years in jail pending trial

When Moira Fenech and the government shake hands on the agreement, it is then registered with the Registrar of Companies and the Tumas Group company is notified. Only then can Yorgen Fenech walk out on bail.

Moira Fenech and the government are still engaged in discussions to reach that agreement.

Nine extra nights in prison

Meanwhile, her nephew has already slept nine extra nights in prison since he was granted bail, and it could be several more days before he walks out, according to lawyers.

Fenech is pleading not guilty to complicity in the murder of journalist Daphne Caruana Galizia. He was arrested in November 2019 as his yacht exited Portomaso. He has been in police custody since he was formally charged some weeks later.

He requested bail multiple times since and was refused every time.

This time, Fenech’s lawyers argued he was entitled to bail because more than 30 months have passed since he was indicted. Prosecutors contested that.

In its decree, the court noted that Fenech has now spent five years in jail pending trial and said the guarantee offered by his aunt was a robust one that gave it sufficient peace of mind to approve his bail request.

His bail conditions include a requirement to stay away from the coastline and airport, steer clear of any witnesses and stay indoors between 5pm and 11am every day.

Breaching conditions could cost aunt more than €50 million

Breaching those conditions could cost his aunt more than €50 million – the court’s bail decree makes it clear that the government will obtain title to Moira Fenech’s share should he breach conditions.

It would also cost him an €80,000 deposit and €120,000 personal guarantee – relatively minor losses compared to what his aunt has on the line.

When released, Fenech will live in a property close to his aunt’s, belonging to Tumas Group.

The Tumas Group is one of Malta’s biggest companies, with interests in real estate, hospitality, energy, cargo and casino sectors.