Yorgen Fenech’s mobile phone continued to register location data almost one year after being seized, continuing to do so when it was supposedly switched off at Europol headquarters, his lawyers claim.

“Metadata does not lie,” argued defence lawyer Charles Mercieca when the businessman, currently accused of complicity in the murder of Daphne Caruana Galizia, was escorted back to court for another preliminary hearing to the upcoming trial.

Having wrapped up their arguments on numerous preliminary pleas, Fenech’s lawyers today highlighted four main issues, one of which concerned the chain of custody of the accused’s phone which was seized at the time of his arrest in November 2019.    

Investigators later said that the device, which was password-locked, had been handed over to Europol for the unlocking and extraction of data.

Yet, although Europol experts subsequently testified that the phone had been placed inside a Faraday room and practically cut off from all communication with the outside world, a timeline drawn up by Fenech’s lawyers appeared to show otherwise.

Metadata, namely data recording time, location and activity of the device, indicated that the phone continued to register data up to November 2020, said Mercieca, urging the judge to access that data to check for herself.

“When Europol was saying that the mobile was off and in a Faraday room, it could not register location. Someone is not telling the truth. Someone could have tampered with that phone and the data on it,” argued the lawyer.

Moreover, that phone was used to launch various ‘attacks’ pending the murder compilation, not only against Fenech himself but also on a political level.

Two calls were also made from that phone to Fenech’s wife and the contents of the device were “scattered all over Malta all the while that police were telling us that the phone was not in their possession.”

When testifying in the early stages of the murder compilation, lead investigator superintendent Keith Arnaud said that sifting through the data on Fenech’s phone, they had come across some “140,000 images.”

That was between November 22 and 25, 2019, pointed out Mercieca, questioning the need to hand over the device to Europol once local police evidently already had an extraction of the data.

“We now know where that information in the news came from. And all the while, this person is still presumed innocent,” went on the lawyer, pointing out that no one had testified about “a tear in the evidence bag.”

Four Europol experts were appointed by the inquiring magistrate on November 23, 2017.

Yet the day before their appointment, police had spoken to Europol via a Sienna message- police to police communication.

To add insult to injury, in December police asked the inquiring magistrate for permission to communicate with Europol, said Mercieca.

When the experts were scheduled to testify at the compilation to exhibit that closed communication, the bill of indictment was issued, thus effectively cutting short the defence’s request.

The issuing of the bill of indictment had also disrupted the defence’s plans to cross-examine important witnesses, including the prosecution’s star witness, self-confessed middleman Melvin Theuma.

A date and time had been set for such cross-examination to take place, said Mercieca, arguing that in the ordinary world an agreement, such as a promise of sale, would be binding.

“So why not the modus operandi set out in a court minute?”

During today’s hearing, a court-appointed expert explained that the victim’s phone had not been found at first, but the remains of the device were later discovered beneath the wreckage of Daphne’s car.

For days, experts were unable to search the wreckage of the vehicle destroyed by the bomb and for that reason, the magistrate conducting the inquiry at the time had authorized the cloning of the phone.

Some 85% of the phone data was also digitally reconstructed using advanced data retrieval techniques and a copy was presented to the inquiring magistrate.

The cloned data was subsequently exhibited in the proceedings against the alleged hitmen but the journalist’s sources contained in that data were not to be divulged to any of the parties and were subsequently redacted from the expert’s report.

Once the destroyed phone was found, the SIM card was retrieved and sent abroad for analysis.

The court, presided over by Madam Justice Edwina Grima, also heard submissions on bail with deputy AG Philip Galea Farrugia objecting to the fresh request.

When all was considered, the balance between the rights of the accused and those of society had still not been attained, he concluded.

The prosecution had to support its perceived fears with facts and saying that “ investigations were supposedly still continuing because the inquiry was still ongoing” was not on, three years down the line, countered Mercieca.“Then the AG comes here repeating the same refrain.”

The court is expected to decree on the request in chambers.

The case continues next month.

Deputy AG Philip Galea Farrugia prosecuted.Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri are defence counsel.Lawyer Jason Azzopardi appeared parte civile.