A judge has banned the media from publishing any evidence disclosed during the court proceedings against Yorgen Fenech on pain of contempt of court, a felony punishable by imprisonment.
Fenech’s lawyers had filed a lawsuit on November 1, complaining about the “uncontrollable dissemination” of information and documents found in the case papers on social and news media, saying it could create irremediable prejudice to his presumption of innocence, as well as affecting his private life and that of his family.
In a decree on the matter issued this afternoon, Judge Edwina Grima observed that the right to information was inherent in any democratic society and that the general public had the right to be informed of what was happening. around them. “On the other hand, it is also the duty of every journalist to faithfully report what he sees that could be in the public interest, with a truthful and trustworthy message.”
It is in the interest of citizens in a democratic society to be informed about what happens in all criminal proceedings before the courts, and that these proceedings always take place in open court, the judge said.
That said, the court noted, the criminal courts are vested with the power to prohibit publication in the media, not only of the name of the accused, but also of all criminal proceedings when the interests of justice. requires it, that is, when these interests override the society’s right to information.
This right to information “must not translate into a right to sensationalism, intended to deceive the reader but must always serve the search for the truth”, declared the judge.
Fenech had alleged that the chats posted online by author Mark Camilleri were a reproduction of the contents of documents exposed in the records of the case, copies of which were only given to the parties. The compilation court had, with the agreement of the parties, ordered the publication of their content to be banned, excluding that which emerged from the testimonies. Failure to comply with this rule would be considered contempt of court, they had been informed.
The court notes with dissatisfaction that in this case, the information contained in the acts, as well as the documents which are exposed therein, continue to be disseminated, in violation of various court orders.
“However, it appears that the orders issued are not being followed, for one reason or another, including by the same defendant, who tries to use exhibits to apparently conduct this judicial process himself instead of the court,” with allegations that prosecution witnesses are not credible – something that should be left to the jury and courts only, not the accused.
Fenech had the right to prove his innocence, but it had to take place as part of the legal process and by no other means, the judge said. Likewise, no one should dare to use media and social networks to reveal the content of documents found in the pleadings with the intention of subjecting the accused to parallel extrajudicial proceedings, she said. .
“That said, although the lawyer claims that this order was based on Article 517 of the Penal Code, the Compilation Court does not seem to have cited this legal provision in its judgment. Indeed, according to the information given by the Registrar of the Courts … it does not seem that the procedure provided for by this legal provision was followed, so that it cannot be said that the order was affixed on the court building as notification and omnes, which would therefore make anyone who violates this order liable to prosecution … for contempt in faciem curiae.
In the present case, the court said that it could not use this section of the law because there was doubt as to whether the person responsible for the violation had been duly informed of the court orders, as well as the source of the information contained in the prohibited documents as well as the identity of the person who defied the court order and transmitted the information to Camilleri. These facts can only emerge from a police investigation, said the judge.
The judge said she was of the opinion that although the court has the power to order the prohibition of various aspects of the proceedings, “in this case, because it is in the interests of justice and of society in general to be informed of what happens in these criminal proceedings, and therefore in proceedings which take place in open court, this article of the law must be made applicable in a limited manner to acts and documents, both printed and electronic, which are exposed and which are not read in open court. “
An order to that effect must be signed by the clerk and affixed at the entrance to the courtroom until the case is heard, the judge said.
As the case against Fenech was attracting media attention, the court ruled that this order should be published in the Official Gazette and two local newspapers by the clerk of the courts.
The court stressed that this order only applied to the documents and documents in the file which had not been read or heard in open court, and that their access was reserved to the parties involved in the criminal case. It was stressed that no part of the documents can be transmitted to third parties, by the parties or their lawyers, without the special permission of the court.
Deciding on the request, the court ordered the police commissioner to investigate the possibility of a violation of the order made by the district court as an evidence compilation court on November 30, 2020 and the matter. whether a person could be held liable for criminal prosecution for contempt of court.
Contempt of court is punished with a maximum imprisonment of one month or a maximum fine of € 2,329.
The judge ordered that notice of the decree be served on Yorgen Fenech, his defense lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri, Deputy Attorney General Philip Galea Farrugia, Police Commissioner and Superintendent Keith Arnaud, the Civil Lawyer Jason Azzopardi and the Clerk of the Courts.