Lawyers for Yorgen Fenech have told a judge this morning that their client had taken so much cocaine before his arrest that even after his arrest, he had tested positive in drug tests for a month.

Madam justice Edwina Grima continued to hear Fenech’s preliminary pleas, which must be decided before his trial can begin.

Fenech was all smiles, greeting family members, as he walked into Madam Justice Edwina Grima’s courtroom this morning. The judge advised lawyer Charles Mercieca that she wanted the defence to wrap up its arguments on the preliminary pleas today.

Mercieca, defence counsel together with lawyer Gianluca Caruana Curran, made several arguments today, alleging that the evidence tendered by Europol experts was inadmissible as they had been appointed as court experts “as an afterthought” and had close ties with the Malta Police Force.

He argued that Europol’s interest was to act on the request of law enforcement. “Who made the request? Was it the inquiring magistrate? It doesn’t look like it from the evidence…whoever makes the request, has to pay them.”

He claimed that Europol had not submitted an itemised invoice with its report, asking who had therefore paid them. “So who paid them? Who asked them to come to Malta? How are they being paid for three years of work?”

Cocaine in prison

The defence also argued that Fenech had been under the influence of drugs during his initial interrogation, claiming that the accused’s subsequent statement was inadmissible as it was not worthy of being brought before jurors due to the state that the accused was in when he made it.

In November 2019, therefore whilst under arrest, Fenech was taken to hospital suffering from severe cocaine withdrawal and had to be heavily medicated. Dr Adrian Vella had said the accused had chest pain due to cocaine withdrawal and had sent him to hospital for an angiogram. He was administered Ativan.

Fenech had been incoherent, claimed the lawyer.

“Fenech had tested positive for cocaine for a full month after his arrest,” submitted Mercieca, adding that former Prison Director Col. Alex Dalli had confirmed this in an affidavit presented in Strasbourg, where he said that Fenech had been detained from 7 December to 11 Jan in solitary confinement, sleeping on a mattress on the floor and deprived of human contact.

Besides the Constitutional implications of this treatment, the lawyer said that this meant that during that month he had not been taking drugs but had still tested positive. “So the authorities are saying he was in a state to give a statement but could not be trusted on his own.” However, Fenech was accompanied and assisted by two lawyers during his interrogation, admitted the lawyer when asked by the judge.

“The police will charge you and demand you are thrown into prison if you are found driving under the influence of cocaine, but want us to believe that he can answer important questions properly.

“Long term cocaine use is associated with cognitive impairment and inhibition, decision making and other issues, said the lawyer, quoting a medical study.

The judge asked him whether the lawyers assisting him during his interrogation, had informed the police about this. ”We weren’t aware of the extent [of his cocaine use],” Merceica replied.

Defence launches multi-pronged attack Europol’s evidence.

In his final submission, Merceica attacked the appointment of a court expert. He argued that case law had established the inadmissibility of law enforcement officers as experts.

The lawyer submitted that the Europol officers who testified in compilation proceedings had been chosen by the police and therefore could not be appointed as court experts.

“They should enjoy the same impartiality and independence of the court, which should be reflected in their work. For a trial to be considered fair, there also needed to be the appearance of impartiality,” he said.

This couldn’t happen if appointed by the police whose “sole interest is to find Fenech guilty”, argued the defence.

Mercieca claimed that the experts had arrived in Malta “in anticipation of Fenech’s arrest” and that police inspector Kurt Zahra had asked the magistrate to appoint the interpol officers as court experts after they had already started investigating.

The judge, however, pointed out that they had been appointed as part of the magisterial inquiry into the murder and had testified in the compilation of evidence against the Degiorgio brothers.

Mercieca submitted that from the evidence they had been asked to gather, it showed they had been appointed “with Fenech in mind.”

The judge said that it was more likely that they had been appointed in the Degiorgio investigation and then their appointment was extended.

Merceica argued that this showed that they were so close to the police that they were asked to work before being appointed by the court. “The appointment was an afterthought,” insisted the lawyer.

Mercieca went on to accuse the experts of carrying out work without authorisation, losing data and of “receiving instructions from someone else.” The lawyer suggested that Europol “had an interest in the investigation as a result of a sort of employment relationship,” telling the court that there was no invoice annexed to the report, which he said raised the question of who was paying them.

“We have a disciplined body, with ties to the police in Malta and with a prejudice in favour of the prosecution.” He stressed that they worked without court authorisation and spent 3 years working with the prosecution.

This would lead to prejudice in favour of the prosecution, Mercieca claimed, going on to state that “in fact that when you enter the Police HQ in Floriana, the first office you come across is the Europol office.”

“Missing data”

The experts were engaged to provide a forensic analysis, which requires an element of opinion, argued the defence lawyer. “They cloned the phone and extracted data from the clone. The data was put through a UFED reader, but not all of the original data is examined. The analyst selects what to include in the final output. These analysts are all Europol, appointed by the police,” Mercieca submitted.

“Why should we doubt the prosecution? Why didn’t it make it accessible from the outset? We all know the rules of disclosure. Could it be that the police are not confident in their case? Why did they cherry pick the evidence to disclose?”

The lawyer alleged that privately-appointed experts engaged by the defence had found more data in the dataset. “But we cannot exhibit it, because Nemo iudex in causa propria is a basic element of a fair trial.”

The lawyer submitted that as the experts could not be taken to be impartial, the defence “is ultimately submitting that Fenech cannot be given a fair trial.”