Yorgen Fenech’s lawyers have argued that a charge sheet is not evidence on which bail can be denied, as his Constitutional case over the repeated refusal of bail continued.

Madam Justice Miriam Hayman heard submissions by the State Advocate and Fenech’s legal team this afternoon.

Fenech filed proceedings over the courts’ repeated refusals to grant him bail after he was first arrested in November 2019 over his role in the assassination of journalist Daphne Caruana Galizia. He has been held under preventive arrest ever since.

Lawyer Charles Mercieca objected to summoning of the registrar of the criminal courts to present a legal copy of the charge sheets relating to the various criminal cases which are pending before the courts of magistrates.

“We have a single overriding principle – this court was created only to protect fundamental human rights, let us not be those who breach them in a case where they are supposed to be protected.”

Mercieca argued that what the State Advocate needed to exhibit was the accused’s criminal record, which is a compendium of all the charges of which he was found guilty in the past.

“What is a charge sheet? It is not even evidence! It is not evidence, a charge sheet is an “aviso di comparire,” a notification to inform the accused with what he is being accused.

“Let us not arrive at the absurd position that the AG files cases against me and then uses those same cases to argue that I am not to be granted bail,” Mercieca said.

“If Fenech is found not guilty of these charges, look at what an error it would be if today’s proceedings are decided on the basis of these charges,” argued the lawyer.

“This is not how a bad character is proven. Besides, character alone is not a ground to refuse bail. The AG knows Fenech is trustworthy and has no convictions,” he said.

State Advocate Chris Soler confirmed to the court that Fenech is still presumed innocent of the murder of Daphne Caruana Galizia. “It is not contested. He is also presumed innocent in other proceedings where he is accused of other offences…This is an overriding principle for the State Advocate.

“The defendants (the State) believes that this document, when seen cumulatively with the rest of the evidence, should lead the court to decide that there was no breach of fundamental human rights.”

Soler argued that it is relevant because otherwise the court would not have a “complete 360 degree picture” of all the circumstances including possible charges against Fenech, which deal with the same period of his arrest.

Fenech’s lawyers argued that the State had the obligation to protect fundamental human rights, which include the presumption of innocence. “Facts are not proven by a charge sheet, but by a judgment on what happened that has since become a res judicata,” rebutted Mercieca, saying that none of the dangers listed in the law as grounds to refuse bail existed.

Mercieca described the State Advocate’s request as “illegal and a breach of the presumption of innocence,” which could not be made in court.

“We are allowing the police to charge people with what we want, when we want and however we want,” he said.

The court put the case off till November 19 for a decision.