After repeated failed attempts to access all evidence concerning the Daphne Caruana Galizia murder investigation, Yorgen Fenech has put up a fresh constitutional challenge for full disclosure.

Ever since his arrest in November 2019, the businessman, who currently awaits trial over his alleged complicity in the 2017 assassination plot, put forward numerous requests for all material gathered by investigators throughout the murder probe.

His first request was made during interrogations following his arrest and nine other requests were tendered since then, the latest on November 8.

But so far all have proved futile.

A year ago the magistrate presiding over the compilation of evidence decreed that police were bound to disclose any information in hand so that Fenech’s lawyers might set up their defence in an effective manner. 

Yet, in spite of that decree, the competent authorities, including the police, had still to date not granted Fenech access to all material and evidence in hand. 

Since investigations are handled by police, it is only the police who know exactly what evidence has been gathered, the lawyers argued.

They said time has shown that, in fact, police have material that may favour the accused and yet, in spite of everything, they continue to deny him access.

All Fenech got was limited information, selected by the prosecuting officer, said the defence lawyers, calling out the “actual prejudice” this spelt for the accused who was suffering a breach of fundamental rights.

Unless there was full disclosure there could be no trial.

Moreover, the Criminal Code itself did not provide for the disclosure to be recorded and nor did it grant the accused the right to contest any decision to deny it.

The law should provide for the court to verify what material the competent authorities may have in hand and to assess whether there are valid reasons to withhold it from the accused. 

Contesting the non-disclosure is part and parcel of a just process ensuring a fair hearing and equality of arms.

In light of this, Fenech’s lawyers are calling upon the First Hall, Civil Court in its constitutional jurisdiction to declare that the non-disclosure breaches the accused’s right to a fair hearing and to order the authorities to supply a full list of all material, including any which might no longer be in police hands.

The lawyers are also requesting authorisation to produce such evidence at the trial.

Finally the court is being requested to declare that the Criminal Code does not offer an ordinary remedy to challenge the non-disclosure.

The case, filed against the State Advocate and the Police Commissioner, is scheduled to start in January. 

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri signed the application.