The Constitutional Court has thrown out an appeal by Yorgen Fenech who sought to revoke a freezing order over his assets, claiming that the legal scenario surrounding such an order breached his fundamental rights. 

The businessman, currently awaiting trial as an alleged accomplice in the murder of Daphne Caruana Galizia, appealed a decision handed down by the first court last year which had declared that the freezing order was legitimate. 

That court had also concluded that Fenech could resort to another ordinary legal remedy to request a variation of that order in such a manner as to ensure that the criteria of proportionality were satisfied. 

In his appeal, Fenech argued that the prosecution had not identified any economic gain or profit derived by him through some criminal activity.

Indeed, the bill of indictment issued by the Attorney General did not even contemplate any accusation or inference that he made any direct or indirect gains through the murder. 

Furthermore, lead investigator Superintendent Keith Arnaud testified in April 2022 that the prosecution had not identified the motive behind the journalist’s assassination, Fenech's lawyers argued. 

No precise motive for the murder identified

When delivering final judgment, the Constitutional Court observed that more than six years since that October 2017 murder, the prosecution had still not identified a “a clear motive” behind the murder and there could “simply be suspicions as to what that may have been.” 

However that did not mean that the freezing order was no longer legitimate or that there was a lack of proportionality between the interests of society at large and the accused’s fundamental rights. 

“The fact that so far a precise motive behind the Caruana Galizia murder has not yet been identified to show any gains through the crime, does not mean that there was no financial aim behind the murder,” declared the judges. 

Fenech is a prominent businessman, involved in the running of a principal family business group in Malta and was also a director of ElectroGas Malta Limited. Caruana Galizia was investigating the power station contract granted to that company. 

All this information was in the public domain and was relevant for the purpose of reaching final judgment, said the court. 

Criminal proceedings against Fenech were still pending and had been pending for more than four years. 

However, the court said it was not in a position to conclude that there were useless delays through some fault of the prosecution or shortcomings in the administration of justice.

Fenech argued that the freezing order was making it difficult for him to carry on his business or earn an income, thus making it impossible for him to honour his financial obligations. 

But the court observed that Fenech failed to produce evidence in this regard or to explain what was stopping him from seeking a variation of the freezing order before the Criminal Court. 

He had, in fact, sought and obtained a variation to the effect that property inherited from his father was released from the freezing order. 

It was his request for total revocation of the order that was turned down. 

The order was simply a precautionary measure and no declaration of guilt on Fenech’s part. His presumption of innocence was in no way tarnished by this order or the fact that it was still in place. 

When all was considered, the court turned down all of Fenech’s arguments and rejected the appeal.

The court was presided by Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul.