Updated 12pm with details

Murder suspect Yorgen Fenech's right to a fair hearing during pre-trial detention were not breached, even when proceedings were suspended under COVID-19 emergency measures, the European Court of Human Rights has declared. 

The judges found the claims made by the businessman charged with complicity in Daphne Caruana Galizia's murder as "inadmissable" and "manifestly ill-founded". 

Fenech had complained further about the conditions of his detention, the State’s alleged failure to protect his health, the lawfulness of his detention as well as the ongoing court proceedings, which were allegedly breaching his right to a fair trial within a reasonable time. 

Last November, the Constitutional Court had concluded that Fenech’s rights had not been breached by the COVID-19 public health emergency order which had brought court proceedings to a standstill. This had overturned an earlier judgment upholding his claim that the indefinite suspension of legal time limits had effectively resulted in his arbitrary arrest.

At appeal stage, the Constitutional Court had rejected Fenech’s argument that the proper procedure for declaring a public emergency had not been followed since such order ought to have been issued by the President rather than the health authorities. 

The State had “positive obligations” to safeguard the individual’s right to life and that included protection “from reasonably foreseeable threats, such as that of the virus,” the court had declared. 

In such a public health scenario compulsory detention to prevent the spread of infectious diseases was legitimate, as a measure of “last resort.”

Moreover, Fenech’s continued detention was not attributable to the fact that witnesses could not testify while the criminal proceedings were suspended, but upon consideration of a number of factors which ran counter to the granting of bail.

These included Fenech's resources and contacts abroad, the possible tampering with evidence, the gravity of the charges, the complexity of the case and the public disorder which his release from preventive custody was likely to spark, given the socio-political background of the crime. 

Claim that authorities had not acted with due diligence shot down

These considerations were confirmed by the European Court of Human Rights in a judgment, declaring as inadmissible Fenech’s claim that the lawful suspension of the murder proceedings for an unspecified time during the COVID crisis and his continued detention was in breach of article 5 of the Convention. 

The suspension of the committal proceedings, did not mean the prosecution had no intention of bringing the accused before the “competent legal authority,” the court said, observing that those proceedings would have continued had that been possible without posing risks to all parties involved, including Fenech himself.

Moreover, during the five-month period between his arraignment in November 2019 and the last decision on bail, Fenech had filed four bail applications, all dealt with speedily by the courts, the last two during the COVID-19 courts’ lockdown. 

When denying bail, the courts had given due weight to the developing scenario of the case, explaining why the original grounds remained valid and making reference to further witnesses possibly still to testify.

There was no evidence that the criminal proceedings had not been actively pursued before and after the COVID-19 emergency measures, said the court, thus also declaring as inadmissible Fenech’s claim that the authorities had not acted with due diligence. 

The ECHR also noted that when the Criminal Court had rejected Fenech’s habeas corpus bid, pending the emergency measures, it had ascertained the lawfulness of his detention, delving into issues not raised by Fenech and stating that the criminal case could still continue had the applicant so requested. 

The court also rejected as inadmissible Fenech’s complaint that the emergency measures had deprived him of access to court to challenge the prosecution’s case, thus breaching his right to trial within a reasonable time.

Finally, the court adjourned its examination of Fenech’s complaints regarding the conditions of detention and the risk to his life in view of the pandemic and his vulnerable status.

On the basis of the case file, the ECHR could not determine the admissibility of these complaints and so gave notice of them to the Maltese government.


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