Yorgen Fenech’s considerable assets in several countries, his access to cryptocurrencies and his influential contacts abroad were just a few of the reasons given by a judge in her decision, earlier this week, to dismiss a claimed breach of human rights by the man accused of the murder of Daphne Caruana Galizia.
In her extensively referenced 60-page judgement rejecting Fenech’s claim, Madam Justice Miriam Hayman disagreed with Fenech’s defence, which claimed Maltese law did not mention the risk of public disorder as a consideration on bail.
“This argument is entirely mistaken, even from the simple fact that Malta adheres to the Convention [European Convention on Human Rights], with the inevitability that case law and notions, as developed by the European Court, are also applicable to us in the case at issue.”
Stressing that she did not want to be interpreted as acting as a “third-tier Court” with respect to the rejections of Fenech’s many bail applications, the judge said her role was to see whether there was a breach of some requisite under ordinary law, the Constitution, or the European Convention on Human Rights which would justify the applicant’s complaint.
The former Tumas magnate is accused of having masterminded the 2017 assassination of journalist Daphne Caruana Galizia, who revealed the existence of his offshore company in Dubai – 17 Black. After her death, the Daphne Project connected the company to the offshore Panama companies opened by former chief of staff Keith Schembri and former energy minister Konrad Mizzi. Fenech was a shareholder in Electrogas, the €200 million plant at Delimara that powers Malta with natural gas.
In her decision, the judge said Fenech was previously granted police bail upon his arrest, with port and airport controls placed on a heightened state of alert. Fenech had received disclosure of the evidence against him immediately after arrest when he requested a Presidential pardon. Both police inspectors Keith Arnaud and Inspector Kurt Zahra had testified about chats in which Fenech considered emigrating to Miami. Other international connections which the accused had with Dubai were still under investigation.
“I have no hesitation in saying that this reason, which formed the basis of the decrees attacked, is something the accused had brought upon himself with the texts he wrote,” she said on the fear of Fenech absconding.
The judge ruled that she “didn’t have the slightest doubt” that Fenech, faced with Melvin Theuma’s presidential pardon, had gone into “drive-and-panic mode, with the clear intention to put distance between him and these islands. This emerges with crystal-like clarity from all the texts which were exhibited… which clearly show the mental state of the applicant at that time.”
The judge pointed to Fenech’s attempt to leave Malta on his yacht “with the weak excuse that he was going to deliver it to a shipyard in Sicily,” but also highlighted the “frantic search for flights, private aircraft, the research on vehicles (by his brother), the no-document rental of a house etc.”
These arrangements had been made in a short period of time, “in an almost erratic and panicky manner, with the help of his brother Franco and ‘Uncle Ray’ to leave these islands before, as Fenech himself says, they blame everything on him.”
The accelerated and unplanned nature of the plans to take the yacht to Sicily, ostensibly for maintenance, “and all the manoeuvres he carried out not to return to our country doesn’t leave much room for further interpretation by the Criminal courts.”
The prosecution’s fear of Fenech absconding was also borne out by his discussion of the possibility of moving to the United States, where he had also been looking at schools for his children, added the judge.
Absconding was a real possibility in view of Fenech’s vast wealth, said the court, adding that his text messages left no doubt about his “easy availability of liquid assets.”
The judge pointed out that although Fenech’s assets “should be struck by freezing orders” from both the murder and money laundering proceedings against him, no evidence had been exhibited that the orders were still in force, also observing that Fenech was not prevented from using other assets which the chats indicated that he had invested abroad.
“It is apparent from these same chats that he can obtain financial assistance from various members of his family, who like him have considerable wealth. Similarly, it emerged that he has access to cryptocurrency with which he bought weapons, no less. Money for the purchase of grenades and cyanide! In short, Fenech has a not-negligible access to assets which could reinforce the fear of absconding.”
The judge observed that in their decisions denying him bail, the courts had also taken Fenech’s multiple connections to influential foreign figures into consideration.
She noted that the evidence showed that Fenech’s mobile phone was found to contain an image of the pardon granted to Melvin Theuma, “that he received, no less, from the Chief of Staff Keith Schembri.”
“It is hard to escape the ease with which Fenech had access to certain information which surely never should have been in his possession.”
The investigation appeared to still be active and appeared to involve a substantial number of people, noted the court. “The more people involved, the greater the fear of evidence being compromised. And the greater the privileged position of these people and the ease with which they obtain certain information also the greater the fear of compromise.”
The Commissioner of Police had publicly declared, and had exhibited a note to this effect, that everyone involved in the murder had been charged, said the court. “Why the Commissioner made this declaration and the circumstances in which it was made are unknown to this court. What is certain is that today the in genere [magisterial inquiry] into this murder is still ongoing, which means that there are persons possibly involved in this crime who have not been identified or who could be subject to compromise.”
Acknowledging that the length of the investigations could be seen as a factor against Fenech’s continued detention, the judge however, also quoted cases where the European Court had accepted that complex investigations can merit an exception to the rights of the person being investigated.
Ruling that Fenech had not suffered any breach of his constitutional rights, the court dismissed the case with costs to be borne by the plaintiff. State Advocate Chris Soler and lawyer Maurizio Cordina represented the State in the proceedings.
Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca appeared for Fenech. Lawyers Therese Comodini Cachia and Jason Azzopardi represented the Caruana Galizia family.