Yorgen Fenech has made a fresh bid for bail, arguing that he must be freed because more than 30 months have passed since a bill of indictment against him was issued. 

The former businessman is awaiting trial for alleged complicity in the assassination of Daphne Caruana Galizia and has been held in custody ever since his arrest in late 2019. 

He is pleading not guilty to criminal charges.

Fenech was escorted to court on Friday afternoon for a pre-trial hearing during which his defence argued their case for bail. 

What Fenech's lawyers say

His lawyers presented a table of calculations explaining why the mandatory 30-month time limit had, by their account, lapsed. 

Article 575 of the Criminal Code states that where a case is to be decided by trial and the crime is liable to imprisonment for a term exceeding 15 years, bail “shall” be granted when 30 months have lapsed from the filing of the indictment.

“The total time between the bill of indictment to date was 39 months 18 days,” explained lawyer Charles Mercieca. 

That time limit was suspended while the acts of the case were before the court of Criminal Appeal. 

After deducting that term of suspension, “today we are precisely at 30 months three days,” went on Mercieca. 

“All we are asking is for the law to be applied…to get bail with all the guarantees we have already offered,” said the lawyer. 

Fenech's lawyers said their client has now been in jail for five years, which in terms of prison years works out to over six and a half years of jail time.

Yet Fenech was "still presumed innocent like all of us here," Mercieca said, as he accused the prosecution of effectively asking the court to breach the law.

In prison terms, one year is the equivalent of eight months. 

What prosecutors say

The Attorney General objected to the request by means of a written reply, arguing that the time when further witnesses were heard before the Magistrates’ Court in the reopened compilation of evidence, was to be taken as suspending the 30-month time limit. 

“That is incorrect,” argued Mercieca, explaining that the Criminal Court had sent the case back to the Magistrates’ Court to compile evidence produced by witnesses who were on the prosecution’s list. 

However, the prosecution stood by its objection when making further oral submissions on Friday. 

There were various instances when the defence had asked for further evidence to be compiled, argued AG lawyer Godwin Cini, citing documents from the case file. 

“The strategy of the defendant is clear,” added the prosecutor.

The legislator provided for the suspension of that time limit whenever the accused asked for more witnesses to be heard, so as to curb abuse. 

Otherwise, the accused could file repeated requests for evidence to purposely prolong proceedings beyond that time limit.

In Fenech’s case, the 30-month time limit had not lapsed, stressed Cini.

Moreover, the fears militating against bail were real in this case.

There was prima facie evidence that Fenech was planning to flee Malta at the time of his arrest. His financial means, contacts and monies abroad as well as the fear of tampering with evidence were all grounds for objection. 

The issue of public disorder was also to be considered. 

The defence rebutted that they had not filed one application for the hearing of additional witnesses and article 406 of the Criminal Code clearly dictated that such procedure was to be done by means of an application. 

They had only filed notes to flag certain evidence which the prosecution had failed to compile. 

“Bail is mandatory upon the lapse of 30 months,” argued Mercieca.

“It will never cross Yorgen Fenech’s mind to abscond….His intention is to fight this trial to prove his innocence and he will. We do not want what is not ours by right, but give us what is ours by right.” 

Madam Justice Edwina Grima is expected to decree upon the request in chambers. 

With respect to an issue flagged by the defence about certain podcasts that were allegedly being aired in breach of a court ban, the judge ordered notification of this matter to the police commissioner to investigate.

He is to attend the next court sitting to supply information about the outcome of his investigation.

The case continues in January. 

AG lawyers Anthony Vella, Godwin Cini and Danika Vella prosecuted.Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri were defence counsel.Lawyer Jason Azzopardi appeared parte civile.