Yorgen Fenech’s lawyers are calling upon the police commissioner to investigate how data was leaked from the businessman’s phone when it was meant to be in safe custody at Europol head offices, isolated from all networks.
The device seized from Fenech on the day of his arrest on November 20, 2019, is the subject of the latest judicial act filed by his lawyers claiming that such leaks to “journalists” and a former MP have prejudiced their client’s right to a fair trial and undermined his family life.
The issue was flagged on Wednesday when lawyer Charles Mercieca was making submissions on four main preliminary pleas to the bill of indictment issued against Fenech for his alleged role as an accomplice in the murder of Daphne Caruana Galizia.
Two days after being seized by the police, Fenech’s password-protected phone was sent to Europol head offices at The Hague, since the tools to unlock the device were not available locally.
The device was handed to Europol expert Ioula Thoma, a person totally “unknown” to the magisterial inquiry and never authorised by the inquiring magistrate to work on that phone.
She later testified that she had applied “brute force” to discover the password, succeeding on January 9, 2020.
That was when phone data could be extracted.
Another expert, Giuseppe Totaro, said the data extraction exercise was completed on October 27, 2020.
But Fenech’s lawyers are claiming that that version of events is suspect and not at all credible since investigator superintendent Keith Arnaud had that data in hand when testifying well over a month before the password was discovered.
This meant that the police and Europol accessed the phone data “behind the backs” of both the inquiring magistrate and the defence, Fenech’s lawyers claimed in their judicial protest filed on Friday afternoon.
They also questioned how no one had explained the torn evidence bag containing the phone, which raised suspicion that the device could have easily been taken out and slipped back inside.
This was while that phone was meant to be locked away safely inside a Faraday room, isolated from all networks.
During that time, information was leaked to journalists and a former MP to create adverse publicity, influencing the public and potential jurors at Fenech’s trial. Those leaks were also intended to undermine Fenech’s family and family life, the lawyers said.
The device continued to register location data and was linked to cell towers and WIFI, meaning that its contents could easily have been tampered with or altered.
That possibility, explained by experts in the field, was a cause of great concern, said the lawyers.
As custodians of that device, the police and Europol were bound to safeguard the phone data integrity and not doing so seriously impacted Fenech’s rights to a fair trial as well as his private life.
The lawyers called upon the police commissioner, also a representative of Europol, to investigate “such damaging behaviour”.
Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri signed the judicial protest.