Yorgen Fenech has appealed a judgment which had rejected his attempt to block the use of information he had given the police for the purpose of obtaining a presidential pardon.

The business tycoon, who stands accused of complicity in the assassination of Daphne Caruana Galizia, had given that information to investigators shortly after his arrest in November 2019.

He is insisting that he had done so “under the express promise” that if his request for a presidential pardon was turned down, that information would never be produced in evidence against him.

Yet during the compilation of evidence against him, the investigators were called to testify by the Caruana Galizia family about that pre-pardon information, he complained.

Although the presiding magistrate had ordered that testimony to be heard behind closed doors, allowing such evidence still effectively breached his right to silence and protection against self-incrimination, Fenech argued through his lawyers.

On July 5, the First Hall, Civil Court in its constitutional jurisdiction rejected Fenech’s claims, stating that the action was premature and that he had not exhausted ordinary remedies.

That decision is being appealed by Fenech’s lawyers, arguing that there was no other ordinary remedy to resort to. Furthermore, although compilation proceedings served to gather and preserve evidence, the court should only allow evidence that was “relevant and admissible.”

Moreover, the lawyers insisted, the information given by Fenech in exchange for a presidential pardon had only been tendered “under the express promise” that it would not be used against him if the pardon request fell through.

Requests for pardons were regulated by means of a particular mechanism administered by the President in line with special and distinct rules. It was only the constitutional court that could offer an effective remedy for such a complaint stemming from a procedure provided by the Constitution, Fenech’s lawyers argued.

They added that Fenech had already suffered prejudice since the information had already been produced in evidence in separate proceedings for the removal of lead prosecutor Keith Arnaud from the murder case.

Allowing such statements “taken against his will” to be produced in evidence, was “truly a grave and serious injustice,” said the lawyers, calling for the revocation of the judgment and for adequate remedies, including a ban on any further use of such information.

In his reply, the State Advocate said that Fenech’s appeal was based on “underlying assumptions” one of which was that he claimed to have information of interest to investigators which could merit a presidential pardon.

Fenech was cautioned and assisted by a lawyer during his arrest

Moreover, the opportunity to contest the admissibility of that information as evidence was an ordinary remedy, fully available to Fenech by way of preliminary pleas to the upcoming trial.

Fenech had been cautioned upon his arrest and had been duly assisted by his lawyers, pointed out the State Advocate, adding that in fact the first court had deemed his complaint as “false and frivolous.”

Fenech had misunderstood and misconstrued the court’s judgment which ought to be confirmed, concluded the State Advocate.