Updated 2.40pm with court order

A judge has ordered the police commissioner to investigate whether author Mark Camilleri is liable to criminal action for publishing thousands of messages between Labour MP Rosianne Cutajar and Yorgen Fenech. 

The transcripts of 2,200 WhatsApp chats reveal an intimate relationship between the pair at a time when Cutajar was publicly dismissing calls to investigate suspected corruption linked to Fenech.

They include references to a gift he had given her at the time. 

Lawyers for Cutajar argued that the publication of the messages violates court-imposed secrecy. 

In a decision on Wednesday afternoon, Madam Justice Edwina Grima ordered Police Commissioner Angelo Gafa to investigate Camilleri and to inform the court if the documents he published were protected by the ban.

A November 2021 court order banned the publication of all typed and electronic data in the case file against Fenech, who is awaiting trial for alleged complicity in the murder of journalist Daphne Caruana Galizia. 

The judge on Wednesday also asked the police commissioner to inform the court if Camilleri is liable to any criminal action for breaching that ban in contempt of court. 

Earlier on Wednesday Attorney General Victoria Buttigieg accepted a request from Cutajar's lawyers to inform the court about the publication, which they say is in breach of article 517 of the Criminal Code.

It states: "If the Attorney General or the Police become aware of the publication of any writing in contravention of this article, they shall inform the court by which the order of prohibition was made and shall carry out such directions as the court shall give, orally or in writing, for proceedings to be taken before the court against the offender, either by summons or by arrest."

Yorgen Fenech is awaiting trial for complicity in the murder of Daphne Caruana Galizia. Photo: Mark Zammit Cordina

The chats were released on Tuesday - a day before the libel case that the MP filed against Camilleri was due to continue. That sitting, before Magistrate Rachel Montebello was deferred to another date.

Cutajar is suing Camilleri over claims in his book, A Rent Seeker's Paradise, that she had an affair with Fenech to advance her political career. 

Cutajar made three requests for action in the form of a legal letter to the Attorney General and two legal applications filed in court.

Cutajar accompanied her lawyers to the Attorney General's office to hand in a legal letter requesting the chief prosecutor inform the Criminal Court about the publication of the messages.  

Breach of rights

They had urged the AG to do so without delay especially since the matter concerned the fundamental rights of third parties, which were manifestly being trampled upon.

Camilleri’s recent publication of “chat transcripts” between Cutajar and Fenech also triggered an urgent application by Cutajar’s lawyers. 

That application was filed before the Criminal Court presided over by Grima, who is presiding over Fenech’s murder case.

However, the court immediately abstained as Fenech's case is currently at the Court of Criminal Appeal, so Cutajar's lawyers filed an application before that court.

The transcripts of the chats were published by Camilleri on his website in two pdf files, a copy of which was attached to the application along with a screenshot of the relative article.

Urgent hearing

Cutajar's lawyers are arguing that if those documents were taken from criminal records of the Fenech murder case, then Camilleri breached laws which prohibit the publication of such proceedings.

Transcripts of Fenech's conversations were solely in possession of the State which had the legal tools to prevent and investigate crimes. 

Allowing their publication would mean that the State has permitted dissemination for reasons extraneous to the Caruana Galizia murder case, the letter argued.

This may have occurred because of a “blatant lack of safeguards to protect third-party interests.”

If this was so, such a leak could amount to a breach of Cutajar’s fundamental rights, namely respect for private family life and personal correspondence. 

Cutajar’s lawyers requested the court to appoint an urgent hearing and if the alleged breach was proved, for criminal action against Camilleri. 

They also called upon the court to order the Police Commissioner to investigate Camilleri for any other criminal offences he may have committed in relation to this case.