Europol officials appointed as experts in criminal proceedings before the Maltese courts were subject “solely and exclusively” to Maltese law and procedure, a Magistrate declared on Monday, insisting that they required no “ulterior authorisation” from any foreign body. 

“Let me make this clear. Ulterior authorisation comes solely from this court. They [Europol officials] are now court experts,” stressed Magistrate Donatella Frendo Dimech.

The Magistrate was addressing a sitting in money laundering proceedings faced by Yorgen Fenech and two former business associates, Nicholas and Joseph Cachia. 

Although proceedings against the father and son are now continuing separately from those against Fenech, the issue revolving around the Europol witnesses applies to both cases. 

The matter has been dragging on since November when the foreign experts were first indicated as witnesses in the case.

During a previous hearing in January, the court was informed that when these experts were called to testify, there was a procedure to be followed which called for authorisation from their superiors and placed specified restrictions upon the witnesses. 

That information triggered some heated discussions in court. 

When the cases resumed on Monday, the prosecution explained that they had not summoned the experts to testify until they sought direction from the court. 

Lawyers from the Attorney General’s Office had emailed the Magistrate’s deputy registrar on February 17 informing them that the Europol witnesses would not be able to testify on Monday “due to circumstances beyond their [prosecution's] control.” 

The court was not impressed. 

“They [Europol] are now court experts… It’s the court that directs the case, not other parties or some foreign institute. These are now court experts whose appointment this court has confirmed,” stated Magistrate Frendo Dimech. 

“Once an expert is to testify about his brief, he has no other connection except with this court,” went on the Magistrate, driving the point home. 

“It’s a matter of security,” AG lawyer Marthese Grech sought to explain, adding that there was a particular procedure to follow. 

Defence lawyer Kathleen Calleja Grima, assisting the Cachias, requested the court to record the prosecution’s explanation about Europol experts needing authorisation each time they were called to testify, and also why those witnesses were not in a position to testify on Monday. 

The court reiterated what it had been saying since November 2022, namely that the minute these officials accepted the brief given by the inquiring magistrate and confirmed by the magistrate presiding over the compilation of evidence, they were divested of any responsibilities, loyalty and obligations stemming from their private assignment from Europol. 

They were now court experts in respect of whom Maltese law and procedure applied “solely and exclusively” with all the consequences in terms of law and jurisprudence. 

The prosecution pointed out that the foreign witnesses had been summoned to testify in January and had been waiting to do so via video conference.

“At the end of the day they did not testify only because of the issue that arose in the course of that sitting,” said Grech. 

Worrying Whatsapp call

On Monday, the prosecution wanted to seek direction from the court so as not to summon them [Europol] in vain, added the AG lawyer. 

But the Magistrate pointed out that that direction had long been clarified by the court, stressing that the matter was to be cleared and settled once and for all. 

Saying that “ulterior authorisation might be needed,” was not acceptable. 

“No one takes any authorisation from anyone except from this court. Let me make this clear.”

The position was applicable also to Fenech’s case.

Earlier in Monday's sitting, Nicholas Cachia’s lawyer flagged another matter of concern.

After her client’s mobile phone had been seized by investigators, the line had been reactivated but WhatsApp had not been installed. 

The line was being used in an old non-smart model that could not even take the WhatsApp application. 

Yet, strangely enough, a relative of the accused had received a WhatsApp call from the accused’s number, explained the lawyer, presenting screenshots of that call and others made when the accused had still been in preventive custody. 

Court-appointed expert Keith Cutajar delved into various technical scenarios by way of explanation. 

The court subsequently authorised him to carry out all necessary checks to find out exactly what had happened and thereby address the defence’s concerns. 

The court directed the prosecution to summon the Europol experts to the next sitting. 

Inspector Brian Paul Camilleri also prosecuted. 

Lawyers Charles Mercieca and Gianluca Caruana Curran were counsel to Fenech.