A lawyer on Yorgen Fenech’s behalf has written a letter to various international and local entities asking for the Public Inquiry into the Assassination of Journalist Daphne Caruana Galizia to be suspended, arguing that Fenech’s rights are being breached.
The letter was addressed to the President of the Council of Europe’s (CoE) Parliamentary Assembly, President of the CoE’s Monitoring Committee, the President of the CoE’s Committee on Legal Affairs and Human Rights; the Speaker of the Maltese House of Representatives Anglu Farrugia; Prime Minister Robert Abela, Justice Minister Edward Zammit Lewis, The State Advocate Chris Soler and the Public Inquiry board.
Lawyer Juliette Galea claimed that there are matters of “grave concern regarding the conduct of the independent public inquiry into the assassination of journalist Daphne Caruana Galizia. It has failed to provide Yorgen Fenech with basic procedural and substantive safeguards consistent with the protections guaranteed under Article 6 and 8 of the European Convention of Human Rights.” Article 6 regards the right to a fair trial and Article 8 regards the right to privacy.”
The lawyer detailed out a number of events, including how the inquiry board was selected, how Melvin Theuma got his pardon etc.
“The concept of a public inquiry was birthed as an upshot of parliamentary accountability and the findings of an inquiry should be directed towards the executive and legislative arms of the State. A public inquiry ought to have nothing to do with a judicial process seeking to establish criminal guilt.”
“As such the operation of the public inquiry should have been scrupulous in avoiding impinging upon the remit of any judicial process and any evidence already compiled in relation to the murder of Daphne Caruana Galizia. Instead, in the interests of justice, the rule of law and the precepts of the doctrine of the separation of powers of the state, the criminal process should be transmitted without delay and without interference to the court vested with the jurisdiction to compile evidence in relation to the said murder i.e. the Court of Magistrates as a court of criminal inquiry.”
The lawyer argues that the public inquiry board paid “insufficient heed to these principles.”
The lawyer argued that the public inquiry board proceeded without addressing basic principles of independence and impartiality, including the need to: publish its methodology and outline with clarity its approach to its scope including findings relevant to third parties’ civil and criminal rights and liabilities; appoint a counsel to the inquiry to guide it in its operation according to its terms of reference; identify privileged/core participants and their rights; refrain from determining civil or criminal liability and/or suggesting and/or ensuring procedural safeguards to protect third parties whose rights may be so engaged or impacted; delineate its parameters and sequencing vis-à-vis the ongoing judicial proceedings related to the matter of the inquiry, namely the compilation of evidence against Fenech; ensure the disclosure and transmission of all relevant information relating to the murder obtained during the course of its function to the prosecution and to Yorgen Fenech.
On the contrary, the lawyer said, the inquiry failed, among other things, ” to formally include the State Advocate as the primary participant even when it is the state and its operation that is under scrutiny; failed to focus on the operation of the state and the safety of journalists; Focused on the apportionment of personal or corporate responsibility even when that responsibility may be relevant to Fenech’s ongoing criminal proceedings and/or more generally his civil and criminal rights, without providing him with essential procedural safeguards including participatory rights and legal representation.”
The lawyer said that “while depriving Fenech of participatory rights or legal representation, the Board has admitted information relevant to his civil and criminal liability and which may exonerate him or otherwise assist his defence of the charged against him.”
The lawyer said that one of the alleged hitmen who has not been afforded a pardon is pointing towards individuals other than the accused as being responsible for the murder.
The lawyer asked those addressed in the letter to take all necessary steps to “safeguard the integrity of all ongoing judicial proceedings including the suspension of the operation of the public inquiry into the assassination until its proper remit is established, including its relationship with all ongoing criminal proceedings (or such criminal proceedings are concluded).”
The lawyer also requested that they take all the steps, including the suspension or termination of the operation of the public inquiry, until Yorgen Fenech’s Article 6 and 8 rights as a person subject to criminal proceedings in relation to the assassination, may be correctly determined by law. “At minimum before any findings that impact upon his civil and criminal liability are made, determination of Fenech’s rights must include the right to legal representation.” She said that at this stage in the proceedings, legal representation, at minimum, must include, among other things, providing Fenech with accurate copies of all the records of the proceedings so far so that he may record his reactions; the opportunity to review all evidence which may be relevant to his civil and criminal liability, the opportunity to argue for the recall of any witnesses and make legal submissions.