A request by Yorgen Fenech to have investigator Keith Arnaud removed from the investigation into the murder of Daphne Caruana Galizia was turned down by a judge, with the court denouncing institutional shortcomings and in particular the way former OPM chief of staff Keith Schembri operated.

In a 155-page court judgment, Mr Justice Lawrence Mintoff ruled that Schembri had not spoken about his “fraternal friendship” with Fenech when he was taking part in confidential briefings about the murder investigation, adding that the non-declaration of such serious conflicts of interest should be made a crime.

Fenech, accused of being a mastermind in the murder that took place on 16 October 2017, filed the case in the First Chamber of the Civil Court against the Superintendent Keith Arnaud, the Police Commissioner, the Attorney General and the Ministry for the Interior and National Security.

Fenech argued that his rights were violated through Arnaud’s conflict of interest, saying that Schembri had helped Arnaud’s wife get a job.

The court noted that Fenech had only asked for Arnaud to be removed from the case after Fenech had been denied a presidential pardon. Before that, he had been full of praise for the investigator. Arnaud had acted in an “upright and correct” manner and Fenech’s rights were in no way breached, the court ruled.

The judge ruled that before the murder of Caruana Galizia in October 2017, Arnaud did not know Keith Schembri and had never set foot in Castille. He said that the two met during the ‘briefings’ that were held in Castille in relation to the murder.

If there was anyone who had a conflict of interest in this situation it was Schembri, who as "factotum and alter ego" of his master Joseph Muscat, continued to attend the ‘briefings’ even when the request for pardon to Theuma was being discussed.

The judge ruled that it is a great disgrace how Superintendent Arnaud was brought into this pitiful situation due to the conflict of interest of others.

The court said it had "great doubts" as to whether Schembri allowed his personal interests to prevail over the public interest.

For his part, Arnaud, then inspector, had no way of knowing how Schembri and Fenech were linked and could not trust his superiors, who had leaked information to Schembri.

Former police commissioner Lawrence Cutajar had gone behind the investigating team’s back when he had met Edwin Brincat, a paternal figure to Melvin Theuma, who had been granted a presidential pardon to testify about the case.

Cutajar and Brincat had discussed Theuma’s secretly recorded conversations which were part of the evidence that was submitted in court against Fenech.

The friendship between Cutajar and Brincat was another “glaring conflict of interest," the court observed, adding that the former police commissioner should not have been involved in making recommendations about Theuma's pardon.

The judge remarked that it was curious that Fenech had targeted only Arnaud, when the latter had the assistance of Inspector Kurt Zahra and Europol officers in the investigation.

“In his initial application, the applicant states that the investigation regarding the homicide of Daphne Caruana Galizia was being conducted by Inspector Keith Arnaud, the Police Commissioner, and other officers within the Police Force. However, the claimant points his finger only at the Inspector, now Superintendent Arnaud, and alleges Arnaud's involvement in the investigation in question, impinges on the independence and impartiality that every police investigation should enjoy, and asking the Court in order to even order that Keith Arnaud should in no way be allowed to participate in the investigation in question, and that every act and decision taken in the same investigation be reviewed by whoever replaces the same Inspector Keith Arnaud,” the judge observed.

Among the “institutional deficiencies” the court noted in the murder investigation, Mr Justice Mintoff mentioned the “the constant leaks of confidential and reserved information” and the possible tampering of evidence.

This could have had “a devastating effect on the public trust in the police force, its image and credibility,” the court said.

The leaks had started right from the beginning, before the raid on the Marsa potato shed was carried out to arrest the suspects involved in the assassination.

Before those responsible for such leaks were tracked down and duly punished, the public would not easily regain trust in the corps’ integrity.

“The court feels that there are clear indications as to who was responsible and enough evidence to charge these [persons] over such crimes.”

Conflicts of interest, especially of people in top positions like Keith Schembri, should also be addressed, the judge noted, suggesting that such situations should be classified as a "serious criminal offence subject to harsh punishment."

The court also remarked that the presence of politicians should be kept to a minimum in meetings related to serious crimes, even when a presidential pardon is being discussed.

Such an exercise should be “a purely technical evaluation and having no political intervention whatsoever would be better.”

The judge said he was morally convinced that the intention behind Fenech’s requests for a pardon was “definitely not that the whole truth be revealed, but to avoid punishment.”

“To achieve this aim, whilst following the script allegedly given to him by Schembri, Yorgen Fenech started to create fictitious and unbelievable scenarios,” said the judge. When investigators pointed out the fact that much of what Fenech had told them in his first statement – about the businessman and the minister who, according to Theuma, were involved in the murder – was based on hearsay, Fenech spun a new yarn, involving Paceville impresario Hugo Chetcuti. “A businessman who, however, happens to be dead, and who can therefore in no way contradict Fenech,” noted the court.

Fenech’s second story was based on alleged drunken boasts by former minister Chris Cardona about having killed Caruana Galizia himself and that his mobile phone data would never make it into the evidence of his libel case he had filed against her over her stories about Cardona attending a German sex club by the name of Acapulco.

Fenech was expecting to be pardoned on the basis of this information which would lead nowhere because it was “not corroborated in any way,” and which would have left the police with nothing concrete that could lead to the identity of who had commissioned Caruana Galizia’s killing.

When his second pardon request was also refused, despite having supposedly said the whole truth and nothing but the truth, Yorgen Fenech once again changed his version of what should have been the truth and said he felt betrayed by Keith Schembri because he had reneged on his promise to help him obtain a pardon.

“It was at this point that, contrary to everything he had said before, he started to say that Keith Schembri was directly involved in the murder plot as one of the people who commissioned and who paid for it.”

Fenech had told the court that after the arrests of the assassins, when panic had overcome Melvin Theuma, who threatened to tell everything to Simon Busuttil, Schembri had told him that he was going to hire Kenneth Camilleri to shoot Theuma dead. He later alleged that Camilleri had lost his nerve at the last moment because when he went to kill him he had found Theuma to be accompanied by his son.

The court gave short shrift to this account, however, pointing out that even if it had been so easy for Schembri to hire Camilleri to kill Theuma, he would have had no reason to go to the trouble of asking Yorgen Fenech to find him someone to kill Caruana Galizia when he had Camilleri at his disposal.

There was no apparent reason to criticise the police’s decision not to press charges when it was not clear that their case would succeed, said the court, and neither could it be said that Arnaud’s involvement in the murder investigation had not been effective.

Mintoff also noted that Caruana Galizia’s widower had testified in these proceedings to reiterate the full trust that he and his family had in the two lead homicide investigators - Superintendent Arnaud and Inspector Kurt Zahra.

Lawyers Gianluca Caruana Curran, Charles Mercieca and Marion Camilleri represented Fenech.