Judge issues clarification on Fenech’s WhatsApp messages

Judge Edwina Grima on Monday clarified a decree she issued last week that gave the impression that WhatsApp messages extracted from the mobile phone of murder suspect Yorgen Fenech were cleared for publication.

In a follow-up clarification published on Monday morning after The Shift reported the development over the weekend and a social media furore erupted, Judge Grima clarified that last week’s decree did not refer to the WhatsApp chats but, rather, to the documents that were attached to the Thursday’s decree.

The publication and/or sharing of Fenech’s WhatsApp chats, according to the new decree, are still banned by the courts, Judge Grima clarified.

Lawyers speaking to The Shift have agreed that the original decree had been somewhat ambiguous on a sensitive subject concerning freedom of information and the public interest, and that it seemed to have allowed for the chats’ publication, which led her to issue a “clarification” on Monday morning.

In that follow-up ‘clarification’ issued on Monday morning after a debate raged on social media, Judge Grima stated: “For clarification ergo omnes the court reiterates that the decree refers to the documents that were attached to the said note and does not refer to the documents exhibited” in court.

As such, the court’s gag order of 29 November 2021 stands and Judge Grima clarified that what she intended with last week’s decree was to refer to the documents that were attached to it, and not the WhatsApp chats themselves.

It is, however, difficult to determine what the judge was referring to, if not the WhatsApp chats because the only documents accompanying that decree were: a MaltaToday article penned by Saviour Balzan, an old judicial protest MP Adrian Delia had filed against Jason Azzopardi – both of which are public information.

She could, however, have been referring to a letter from the Attorney General to the Judge and a copy of the letter Fenech’s lawyers sent to the Attorney General, which were also published as part of the decree in question.

The issue stems from the Attorney General’s request for the Criminal Court to take action against lawyer and former MP Jason Azzopardi, which the court refused to do last week.

The AG’s request followed a complaint from the lawyers of Yorgen Fenech, who stands charged before Madam Justice Edwina Grima with masterminding the assassination of journalist Daphne Caruana Galizia.

In the article on which the Fenech’s lawyers’ and the AG’s request was ultimately based, Balzan claimed he was facing “constant rumour-mongering, and recently, a blackmail of sorts about WhatsApp chats [extracted from Fenech’s phone] being published” while blaming Azzopardi.

Fenech’s lawyers were quick to pick up on the article and wrote to Attorney General Victoria Buttigieg on 31 May. They claimed Azzopardi threatened to publish extracts of the chats “in violation of a court order” and because “the case in question is still before the criminal court of appeal”.

By invoking Article 517 (3) of the Criminal Code, Fenech’s lawyers sought to have Azzopardi arrested or summoned for contempt of court because the chats’ publication violated their client’s right to a fair hearing and his right to private life.

In her decree on the matter last week, Judge Grima simply said it: “Since the said documents do not qualify as those publications which the law speaks of in Article 517 of the Criminal Code, it is considered that no steps can be taken based on the said provision of the law by the Court.”