Yorgen Fenech has failed in his bid to get lead investigator Superintendent Keith Arnaud off the investigation into the murder of Daphne Caruana Galizia.
A court concluded on Wednesday that it could not consider Fenech's bid, as he had failed to exhaust all ordinary legal remedies available to him before filing the case.
Fenech, who is awaiting trial for his alleged complicity in that murder, had filed constitutional proceedings case claiming that Arnaud had a “clear” conflict of interest and could not, therefore, investigate the murder in a “serene manner”.
The applicant claimed that such conflict stemmed from Arnaud’s “close relationship” with Keith Schembri, the former Prime Minister’s chief of staff and also a former close acquaintance of Fenech himself.
According to what Schembri had allegedly told Fenech, Arnaud had sought assistance from the former OPM chief of staff to get a job for his wife.
In fact, Arnaud’s wife landed a job at Infrastructure Malta in January 2019, the applicant said.
Moreover, Fenech claimed that Schembri would get information about the murder investigations from Arnaud.
That information further extended to details about the scheduled arrest of the three suspected hitmen, namely Alfred and George Degiorgio and Vince Muscat.
When being escorted to police headquarters following his arrest, Fenech claimed to have been met by Arnaud who warned him to be careful when implicating other people in the murder.
And when he asked the investigator whether that was a reference to Schembri, Arnaud allegedly replied in the affirmative.
The former chief of staff’s office at Castille was not searched by police and Fenech’s request to the police authorities to have the lead investigator removed, was turned down.
When delivering judgment on Wednesday the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Lawrence Mintoff, observed that the only defendant legitimately sued was the police commissioner.
He headed the corps and was therefore responsible for the murder investigation.
The other defendants, namely the State Advocate, the Home Affairs Minister and Arnaud himself were all non-suited.
'Fenech did not exhaust ordinary remedies'
As for Fenech’s claims, the court declined jurisdiction and did not enter into the merits, observing that the applicant had not exhausted ordinary remedies.
Fenech could have filed a report or criminal complaint and followed that up with challenge proceedings before the Magistrates’ Courts.
If the applicant had “incriminating” evidence against Schembri, as he claimed, he could have filed an application before the ordinary courts for his claim to be vetted by an independent court which could have ordered the police commissioner to take action.
That challenge could have been followed in a “practical, effective and efficient manner” in respect of the applicant’s alleged breach of fundamental rights, said Judge Mintoff, thus refraining from taking further cognizance of Fenech’s claims.