A "missing" Europol report completed in 2018 that suggests possible scenarios linked to the murder of Daphne Caruana Galizia will have to be presented again to court.

The report is based on data extracted from the cloned mobile phone of the slain journalist. 

The document, which the lead investigator claims he has never seen, is "missing" from the records of the compilation of evidence against Yorgen Fenech, who is awaiting trial as an alleged accomplice in the journalist’s assassination.

The compilation of evidence resumed this week, with the author of the report - a former Europol expert - refusing to divulge details on the contents unless assured that “handling codes” had been lifted.

Marinus Martin Van Der Meij, who was expected to make a personal appearance in court, testified instead via video link, confirming that he had handed a physical version of his report to then-inquiring Magistrate Anthony Vella by whom he had been appointed in March 2018.

However, his brief testimony was followed by some animated discussion, which led murder investigator Superintendent Keith Arnaud to firmly state that he had only recently come to know of this report.

He was ready to declare on oath that the document was never in his possession and that he had no knowledge about its contents. 

As the arguments ping-ponged, defence and parte civile lawyers pointed fingers at each other for having allegedly leaked the sensitive material to the press.

And while Fenech’s lawyer, Charles Mercieca, claimed that the absence of this report from the records amounted to “suppression of evidence,” parte civile lawyer Jason Azzopardi remarked that “an innocent person would not ask for a pardon".

Report protected by “handling codes”

Marinus Martin Van Der Meij had been tasked with examining data extracted from the victim’s cloned phone and other related data downloaded from the cloud.

Caruana Galizia’s personal phone was destroyed in the car bomb explosion that killed her metres away from her Bidnija home in October 2017, but digital experts later cloned a copy of that device. 

When testifying this week, the former Europol expert said that he had completed his task and handed over a physical copy of his report to the magistrate on May 22, 2018, during one of his trips to Malta. 

But the document was nowhere to be found in the case records. 

Defence lawyer Charles Mercieca explained that he had personally sifted through “70 volumes” of documents but that particular report was not there. 

One of the objectives of that report was to analyse different scenarios that could shed light on possible motives and instigators behind the journalist’s assassination. 

When asked to confirm whether that was so, Van Der Meij refused to divulge details, explaining that the report was “protected by handling codes”. 

Questions about this ‘missing’ report first cropped up in constitutional proceedings wherein Fenech is claiming that his fundamental right to a fair hearing was breached through non-disclosure of certain evidence by the prosecution. 

When testifying in those proceedings a year ago, Van Der Meij also refused to divulge his findings, saying that the report belonged to the criminal court and he could not disclose its contents before another court. 

But when summoned at Fenech’s compilation of evidence, under an express decree of the Criminal Court, the expert still refused, saying that the report was “protected” and that he had pointed out the Europol “handling codes” to then-Magistrate Vella when handing it over.

“As far as I know none of those codes were lifted. I’m not aware of it. If they were, I have no problem testifying,” said the witness, adding that he no longer worked at Europol. 

However, Fenech’s defence argued that as an expert appointed by the inquiring magistrate, he was bound by Maltese law to testify about his work. 

“I was an expert of the Maltese court but also an expert for Europol... I also have to follow Europol rules on sharing intelligence… I completely understand… But the report was classified and protected and I cannot speak about its contents unless someone tells me that the codes have been lifted,” insisted Van Der Meij. 

‘Missing’ report to be presented, court says

Magistrate Rachel Montebello suspended the expert’s testimony, saying that the matter had to be clarified, but the discussion continued. 

“What information did that report contain? To whom was it important for such a report not to be in the court acts? Where is it? Why did it vanish,” asked Mercieca.

These were “serious proceedings” wherein Fenech was facing trial and possible life imprisonment while this evidence was missing from the acts. 

This piece of evidence was also necessary for the full integrity of the proces verbal, argued Mercieca.

Lead investigator Superintendent Keith Arnaud stepped in, saying that the report was never in his possession and that he had never seen it. 

What Van Der Meij had just said changed the scenario. 

“Today the witness gave us a clear picture as to why possibly this report is not in the acts. His brief testimony is highly indicative,” said Arnaud, suggesting that the document ought to be tracked down, de-classified and steps taken to ensure that any sources mentioned therein are protected.

“After that, I have not the least problem for it to be produced at the trial,” said the prosecutor.

“The prosecution has long been avoiding presentation of this report,” countered Mercieca, arguing that its absence amounted to “suppression of evidence”.

After confirming that Van Der Meij had been ordered by the Criminal Court to present the document, Magistrate Rachel Montebello minuted that that was to be the way forward.

The Magistrate also declared that the expert was no longer to be bound by confidentiality restraints on divulging the contents of his report which was to be presented “fully in the same way it was presented on May 22, 2018”.

How that was to be done, given that the expert no longer worked at Europol, was still to be determined. 

The defence said it knew where the report was to be found and that the report had been leaked to journalists who wrote about it this year, stepped in parte civile lawyer Azzopardi.

“You leaked it,” Mercieca hit back, adding that “the media has scourged Yorgen Fenech, and that includes the parte civile too”.

Azzopardi countered that there was no level playing field and that he was only safeguarding the rights of the victim’s family.

'An innocent man would not ask for a pardon'

The court also heard that recordings of intercepted calls between self-confessed middleman Melvin Theuma and Edwin Brincat known as il-Gojja, were inaudible and could not be transcribed. 

There were gaps in the transcript of Brincat’s statement. 

Those missing excerpts hinted that Fenech was being “framed,” with Brincat urging Theuma to “put words in the mouth of that guy tat-Torri” and to refer to the Portomaso businessman as the “mastermind”, claimed Mercieca. 

That claim was totally “not true”, said Arnaud, adding that Brincat had simply instructed Theuma to refer to Fenech by name when secretly recording their conversations. 

Moreover, those phone taps were only “briefly” used by the investigators and were returned to “the owner” once the interrogation was over.

Countering the frame-up allegation, Azzopardi pointed out that “an innocent person would not request a pardon”. 

The court was to appoint an expert to enhance the quality of the audio for the transcriber to be able to supplement the missing information. 

The case continues. 

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

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

Lawyers Jason Azzopardi and Therese Comodini Cachia are representing the victim’s family.