Yorgen Fenech cannot use constitutional court proceedings as a form of appeal against a lower court's decision allowing information he had given in the hope of securing a presidential pardon to be admitted as evidence against him, a court has ruled.
The decision was delivered by the Constitutional Court when turning down an appeal filed by Fenech against a judgment delivered in July by the First Hall, Civil Court, stating that his constitutional action was premature since the applicant had not exhausted ordinary remedies.
Fenech’s claim centred upon information he had given the authorities as he sought a presidential pardon in the case where he stands accused of complicity in the murder of Daphne Caruana Galizia.
His lawyers argued that such confidential information should not be admissible as evidence because it was given to the prosecuting officers under the express promise that it would not be used as such if the pardon was not granted.
Fenech’s defence argued that they had turned to the constitutional court for an effective remedy since no other remedy in terms of ordinary law was available.
When delivering judgment on Wednesday the Constitutional Court confirmed the reasoning of the first court, declaring that there was no doubt that Fenech would have every opportunity to challenge the admissibility or otherwise of such pre-pardon information before the Criminal Court.
In fact, he had the right to contest the validity of all statements released to police, as he was already doing at the pre-trial stage before the Criminal Court.
It was to be borne in mind that information gathered at the compilation of evidence stage was for preservation purposes and that nothing was definite.
As for Fenech’s argument that investigators had not warned him of his right to remain silent, that too was an issue to thrash out in the criminal proceedings, the court said.
Moreover, there was no express legal provision stating that anything said by a suspect before being cautioned could not be admitted as evidence at the criminal proceedings.
In light of all considerations the Constitutional Court, presided by Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul, concluded that Fenech had failed to put forward arguments that were forceful enough to convince the court that his claims were to be assessed in these constitutional proceedings.
The court said this case differed from other cases where statements by accused persons were successfully challenged because they had been released without the assistance of a lawyer.
In this case, Fenech had been assisted by his lawyer, the court observed, confirming that Fenech’s constitutional case was premature.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri assisted Fenech.
State Advocate Chris Soler represented the State as respondent.
Lawyers Jason Azzopardi and Therese Comodini Cachia represented the Caruana Galizia family, who intervened in the proceedings.