A judge’s decision ordering the police commissioner to hand data extracted from Keith Schembri’s phones to Yorgen Fenech’s lawyers has been revoked by the Constitutional Court.
Judgment was handed down on Monday morning upon an appeal filed by the state advocate against a decision delivered in November.
Fenech’s lawyers had argued that those devices, though not the same as the one that allegedly went offline shortly before the former chief of staff's arrest in 2019 and was still ‘missing’, contained data that was nonetheless “essential” to their case.
That argument was made in proceedings wherein Fenech, who is currently awaiting trial for alleged complicity in the murder of Daphne Caruana Galizia, is seeking the removal of lead investigator and prosecutor Superintendent Keith Arnuad.
Mr Justice Lawrence Mintoff had ruled in favour of Fenech’s lawyers, but the state advocate had pointed out that by disclosing such mobile data, ongoing police investigations could be prejudiced.
In his appeal, the state advocate argued that the data being requested by Fenech’s lawyers was “confidential” since it formed part of an ongoing magisterial inquiry.
The Constitutional Court presided over by Chief Justice Mark Chetcuti together with Justices Giannino Caruana Demajo and Anthony Ellul noted that the first court had deemed that the law granted the judiciary “wide discretion” to take adequate measures where fundamental rights were to be safeguarded and the Constitutional Court agreed.
But such “flexibility” could not be “unlimited” as all parties in a lawsuit were to have legal certainty and equality of arms, meaning both parties had a right to know what to expect. They could not be surprised by an interpretation that was “manifestly not compatible to what the law itself said,” the three judges said.
And the law prohibited in an absolute manner the production of any records from a magisterial inquiry that had not yet been wrapped up and deposited in court.
Moreover, in this case, Fenech’s lawyers had simply insisted that the phone data was “relevant and vital” to their case, without giving the slightest indication as to how this was so.
Such requests could not be used as a “fishing expedition,” concluded the court, thus upholding the appeal and revoking Judge Mintoff’s order.
The Constitutional Court also ruled on Monday on proceedings that stemmed from the day when Mr Justice Mintoff had handed down the first decision.
At the time, the state advocate, Chris Soler, had minuted that the police commissioner would abide by the court’s order.
But the police commissioner appeared to have a change of heart and at the next sitting, a lawyer from the State Advocate’s Office informed Mr Justice Mintoff that the police commissioner was to file an appeal.
The judge had deemed such a turnaround and a failure to inform the court beforehand as tantamount to contempt and promptly slapped the state advocate with a fine of €500.
The state advocate subsequently appealed against that fine, describing the decision as “very unfair.” Later, Mr Justice Mintoff revoked that fine.
The court noted that the fine had been revoked and the court therefore did not need to go into the merits of the issue.
In a third decision, the court declared the police commissioner's appeal in the data sharing case was null. It explained that the minute dictated by state advocate Chris Soler when Mr Justice Mintoff handed down his decision amounted to “a manifest and unequivocal renunciation to the right of appeal” since there was “a free and voluntary obligation for the police commissioner to carry out the order of the first court.”
At no stage did the police commissioner argue that Soler, as his lawyer, had acted beyond his brief.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri were counsel to Fenech. Lawyers Maurizio Cordina and Miguel Degabriele appeared for the respondents.