Magistrate Aaron Bugeja feared that the laptops and hard-drives belonging to Daphne Caruana Galizia could not be used as evidence due to a compromised chain of custody, wherein the whereabouts of the said equipment was unknown for six months, the Egrant inquiry report reveals.
The report reveals the correspondence between Bugeja and prosecutors in Germany after the latter told him in May 2018 that they had come into the possession of laptops and hard-drives which belonged to the assassinated journalist.
The correspondence shows how Bugeja unsuccessfully requested the original laptop and hard-drives to be transferred to the Maltese authorities, but it also reveals his fears that because the whereabouts of the devices was completely unknown for six months, there would be difficulties in using them as admissible evidence.
“In such a scenario, any defence lawyer worth his salt can easily shoot down at once these documents during the course of a trial by jury”, he told the German prosecutor in one email.
An analysis by The Malta Independent below reveals the timeline of correspondence between Bugeja and the German prosecutors.
On 18 May 2018 an email was received from the German Prosecutor Tanja Altmann which noted that “further suspected evidence about a law firm in Frankfurt am Main has been obtained that may be relevant to you”.
“These are the work laptops from the estate of the murdered Mrs. Daphne Caruana Galizia, which were handed over to the BKA and secured there”, the email read.
The BKA is the abbreviation for the Federal Criminal Police Office in Germany.
Altmann suggested a supplementary request for the transfer of backup copies of the seized hard disks so that a judicial evaluation of the existing data is possible, while she noted that if Bugeja extends the European Investigation Order to these backup copies, an agreement can be reached on the modalities of the transfer.
The report notes that the German authorities had in hand two laptops and three hard-drives which belonged to Daphne Caruana Galizia. One laptop had both hard drive slots empty while the other laptop also had its drive bay empty and did not turn on even when connected to a power supply. The three hard-drives were 160GB, 250GB, and 500GB in size respectively. German IT forensics found that the 160GB hard drive had a physical defect meaning that 8192 bytes – 8.192 kilobytes – were unreadable.
Bugeja first replied on 24 May 2018 noting that he was consulting with colleagues involved in the Daphne Caruana Galizia murder inquiry and told Altmann that he would get back to her with a more detailed reply hopefully by the day after.
In the meantime he noted in his reply that “Maltese Law of Criminal Procedure follows the best evidence rule. Therefore it is of utmost importance that these hard disks and computers remain in possession of the BKA for the time being and that they are not delivered back to the persons who handed them over to the BKA or to other third parties, as this could further prejudice local investigations and inquiries.”
Bugeja writes that he informed Deputy Commissioner Silvio Valletta about the finding of the laptops and hard-drives, along with Magistrate Anthony Vella – who were both involved in the journalist’s murder inquiry.
On 25 May 2018 Bugeja sent a more detailed reply to Altmann. He noted that the documents in her possession could be relevant not only for his inquiry but also other pending inquiries led by other magistrates along with investigations being led by the Malta Police.
He wrote that he understood that more than six months after Caruana Galizia was murdered, two empty laptops and three hard-drives – one of which was partially damaged – allegedly belonging to her ended up in the hands of a firm of Frankfurt Lawyers “(from undisclosed sources)” who delivered them to the German Federal Police for a short period of time.
“This current situation described above relating to these laptops and hard drives is particularly serious. Despite various efforts that were made by the Malta Police and the Inquiring Magistrate to trace these laptops and hard disks (which resulted only in dead ends), these laptops and hard disks have been left untraced for more than six months and (as it has been reported) nobody, including family members of Ms. Caruana Galizia, claimed to know anything about their whereabouts”, Bugeja wrote in the email.
“This despite the fact that the data contained in the original working laptops and hard drives of Ms Caruana Galizia could have constituted extremely important evidence in the inquiries conducted by the Maltese Magistrates and the Maltese Police, not least in relation to the murder, in Malta, of Ms. Caruana Galizia.”
“This situation may have already prejudiced the probatory value of these documents as it now presents Maltese Judicial Authorities with a plethora of legal problems in relation to admitting these laptops, hard disks and the data contained therein as evidence in criminal proceedings”, he wrote.
“Maltese Law requires proof of an uninterrupted and untainted chain of custody of documents (including computer hardware, software and digital data). In this particular case this may have already been compromised given that there is a six month vacuum that no one can now credibly account for. It will be very difficult, if at all possible, to prove an uninterrupted and untainted chain of custody”, Bugeja wrote.
“The sequencing of the chain of evidence was compromised as for six whole months as there was no proper identification and collection, analysis, storage, preservation, transportation and presentation of the same to the Inquiring Magistrate. Maltese Law requires clear evidence to establish who obtained the documents, who secured the documents, as well as where and when these documents were obtained and last but not least who had the effective possession and control of these documents. This is not just a formality”, he continued.
“In such a scenario, any Defence lawyer worth his salt can easily shoot down at once these documents during the course of a trial by jury”, he told the German prosecutor.
Bugeja also notes that because an inquiring magistrate must collect, preserve, and present evidence to the Attorney General so to make a thorough assessment on whether he can proceed with the exercise of criminal action. This means, he said, that he requires the original laptops and hard drives not just backup copies.
He also said that it must be confirmed that the laptops and hard drives were indeed those belonging to Caruana Galizia, meaning that Forensic IT Specialists had to carry out tests and analysis on the original documents themselves.
“You appreciate that this is a very delicate and complex scenario that already presents numerous challenges. But in order to reduce any further prejudice to these various investigations and inquiries, for the reasons abovementioned, we kindly request your Offices to hand over to us the actual original laptops and hard disks in your possession rather than "backup copies"”, Bugeja wrote.
Bugeja suggested that the UK Forensic IT Specialists which he had appointed during the course of his inquiry could make clones of the hard drive so that while the originals are handed over to Malta, the BKA can retain a copy of the data for safe-keeping.
Bugeja sent a reminder to Altmann about his request on 29 May 2018. He received a reply on 4 June 2018, but in this Altmann only said that she needed more time due to the complexity of the situation and of the legal basis of Bugeja’s request. Bugeja replied back two days later once again highlighting the urgency of the request, saying that “time is completely against the Maltese inquiries”.
Bugeja received a reply the following day, wherein Altmann explained the legal issues surrounding the transfer of the laptops.
“The laptops are situated at the Federal Criminal Police Office Wiesbaden on the basis of a voluntary transfer and are not subject of a German Investigation procedure. The local prosecution has no legal basis for a seizure of these laptops as evidence, therefore the local authority cannot freely dispose of them, as there are still rights of the owners of the laptops. As long as in Germany no investigation procedure is carried out, under which these laptops are seized, we have no authority over these laptops. It is for this reason that no transfer of laptops or hard drives is considered”, she wrote.
“Since the prosecution Wiesbaden is only involved on the grounds of the EEA of the Maltese Authorities in relation to the Panama Papers, my power cannot even go beyond”, she said. She said that the prosecution in Wiesbaden can only make them available on the grounds of a new rogatory letter while also suggesting that another EEA allowing Bugeja to request research into the database of the laptops by specifying the exact keywords required.
Bugeja sent an email in reply the following day, noting that the position of the equipment is “radically different” from that of the Panama Papers Cache. “Unlike the Panama Papers Cache, Malta has full jurisdiction to investigate the murder of Ms Caruana Galizia, a Maltese, brutally killed in Malta”, he wrote.
“I do sincerely appreciate the difficulties that your Office was led into. But with due respect, your latest reply and proposal are particularly serious and disconcerting since they confront Maltese Judicial Authorities with implications that go well beyond the legal or procedural”, he wrote.
Bugeja once again reiterated his request as made in the initial email sent on 25 May 2018, that being that the laptops and hard drives should be provided to the Maltese authorities.
Bugeja then received a reply from a certain Dr. Thoma which reiterated the German position that a new EEA was required and that it was not possible to hand over the laptops due to the local legal situation in Germany.
Following this, Bugeja reverted to the group of magistrates who he said had an interest in this evidence – these being Anthony Vella, Josette Demicoli, Natasha Galea Sciberras, and Monica Vella.
Here Bugeja questioned whether the magistrates would consider an ad hoc EIO (European Investigation Order). The decision which has to be taken, he later said in the email, is on the nature of cooperation which the German authorities are offering and whether it conforms with Maltese procedural law.
“If you are ready to accept the proposal being made by the German Judicial Authorities then you can make a request through an EIO in line with what they are ready to offer as per what they say that the law permits them to do”, he wrote.
“This means that they would conduct the searches themselves on material which Maltese Authorities have jurisdiction over. Although this may be a “practical” solution I ask you to think about the dangerous precedent that this practice and practicality can create. I don’t think I need to stay elaborate in this letter”, Bugeja wrote.
In the meantime, Anthony Vella was elevated to Judge with the result that Magistrate Neville Camilleri took his place as the inquiring magistrate into the Caruana Galizia murder case. A meeting took place between all the magistrates, wherein Magistrates Demicoli and Galea Sciberras said that they did not need the laptops and hard-drives; while Magistrate Vella said she would consider alternative routes.
Magistrate Galea Sciberras is leading the inquiry into claims that the then Prime Minister’s Chief of Staff Keith Schembri was receiving kick-backs from passport sales, while Magistrate Demicoli is leading an inquiry into accusations that Schembri paid €650,000 to the former Allied Group managing director Adrian Hillman through an offshore company between 2011 and 2015.
Camilleri meanwhile said he needed more time, and it was ultimately agreed that Bugeja should contact the German authorities to advise that Camilleri will be handling communications on the devices from there on in.
Bugeja did this in an email dated 12 July 2018, with this being the final correspondence between Bugeja and the German authorities on this subject listed in the report.