Foreign Europol experts linked to a ‘missing’ report in the case against Yorgen Fenech must testify and present the document into evidence, a magistrate has reiterated firmly.

The report was based on data extracted from a clone of Daphne Caruana Galizia’s phone but appears to be missing from records of the case against Fenech, who stands accused of complicity in Caruana Galizia’s 2017 murder.

A court has heard that a Europol expert who compiled the report presented a physical copy to the inquiring magistrate in May 2018. But Fenech’s lawyers say they do not have a copy.

They say the report lists different scenarios of individuals who could have had an interest in assassinating Caruana Galizia and is therefore crucial to their defence.

In a court this week, Magistrate Rachel Montebello waved aside prosecutors’ arguments that the Europol experts involved must first obtain clearance before presenting the report as evidence in the case.

“Not acceptable”

Lead investigator Superintendent Keith Arnaud said the two experts were “not available” for a hearing scheduled next week.

Marinus Martin Van Der Meij, who handed a physical version of the report based on data extracted from Caruana Galizia’s cloned phone and cloud to then-inquiring magistrate Anthony Vella, had since left the Dutch police corps, explained Arnaud.

Another expert, Konstantinos Petrou, could not make it because of personal reasons.

Moreover, the experts needed clearance from Europol, added Arnaud.

Defence lawyer Charles Mercieca said that was not acceptable and noted that the prosecution had known about this evidence since 2021. Fenech, he added, has spent the past four years in jail, having been denied bail.

Mercieca argued that given that the report was given to a magistrate in 2018, it was already cleared for use in the judicial process and there was no justification for delaying that further.

Defence lawyer Mercieca alleged that the victim’s family appeared to be aware of the contents of the report .

That was strongly rebutted by parte civile lawyer Therese Comodini Cachia, who stressed that the family only learnt about the report when the defence flagged its existence in separate proceedings.

When testifying, Europol expert Van Der Meij had said that the report was a ‘protected’ document to be used for intelligence purposes and that he could not divulge details unless specific access codes linked to it were lifted.

Van Der Meij also testified that he had handed the document to the magistrate “according to an agreement whereby it was not to be used in any judicial process but only for intelligence.”

But the Magistrate shot that line of reasoning down, saying the agreement “not only does not make sense but (also) caused prejudice.”

She therefore reaffirmed an order of the Criminal Court and concluded that the Europol experts must comply with that order before the case is sent back to the superior court.

“Fenech has been here for three, four years. The experts must come irrespective of the reasons given to the prosecution,” was the Magistrate’s final word.

Leaks- “the only person suffering is Fenech”

At the start of the sitting, AG lawyer Anthony Vella flagged a series of leaks consisting of “extracts from case documents” on local publications.

Those leaks were in flagrant breach of a court ban and the prosecution requested the court to re-affirm that ban. 

However, the magistrate explained that such a request was to be put to the Criminal Court.

“The only person suffering is Fenech,” said Mercieca, questioning what the prosecution had done to investigate those leaks.

The matter had already been flagged to the Criminal Court, replied Vella.

The case continues.

AG lawyers Anthony Vella and Godwin Cini prosecuted, together with Superintendent Keith Arnaud.

Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are defence counsel.

Lawyers Therese Comodini Cachia and Jason Azzopardi appeared parte civile.

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