Yorgen Fenech’s rights under pre-trial detention, while he was segregated during the COVID-19 pandemic, were not breached, the European Court of Human Rights has declared.

The businessman, who is currently awaiting trial for alleged complicity in the 2017 assassination of Daphne Caruana Galizia, had claimed that the conditions of his detention at the Corradino Correctional Facility pending the public health emergency order effectively breached his right to protection from inhuman or degrading treatment.

He also claimed that the state had failed to preserve his health and well-being by providing him with adequate protection from contracting COVID-19, particularly in view of the fact that he has only one kidney.

However, in Tuesday's judgment, the ECHR judges unanimously held that Fenech had suffered no breach in terms of Article 3 of the European Convention while he was segregated in jail.

'Isolation was necessary'

That period of isolation, lasting no longer than 35 days, had been necessary for medical reasons and protective purposes, taken in line with the policy at CCF that anyone testing positive for drug abuse would not be allowed to mix with other inmates until they tested negative.

Although the Court considered that Fenech ought to have been notified in writing, rather than simply verbally, and although the government had not indicated a legal basis for it, the Court nonetheless concluded that the measure had been based on a thorough physical and psychological assessment.

Fenech had not suffered any harmful psychological or physical effects as a result of this period of isolation and after examining the actual conditions of his single-occupancy cell, the Court held that there had been no breach in terms of article 3.

Likewise, the conditions in the dormitory where Fenech had an individual sleeping space and 4.5 square metres of personal space, meant that such conditions did not amount to inhuman and degrading treatment.

Fenech had also complained that during the public health emergency he had been deprived of access to the gym, his family, church and other activities.

But here again, the judges observed that these restrictions had occurred within a very specific context and had been introduced for significant health reasons.

'Measures imposed on society at large'

Besides, such measures were imposed not only on the applicant but on society at large. Given the exceptional scenario brought about by the pandemic, those measures could not be considered to have caused Fenech greater distress or hardship than was unavoidable during detention at the time.

In so far as Fenech complained that the authorities failed to safeguard his right to life, the Court observed that the applicant had not been infected more than a year and a half since the start of the pandemic.

The vaccine was made available to him as early as April last year.

Moreover, although he complained that in light of his medical condition he ought to have been protected from exposure more than other inmates, the Court observed that he was not the only prisoner who qualified as vulnerable and indeed had not proved that he fell within the category of most vulnerable.

The fact that he shared a dormitory and used the same medical, sanitary, catering and other facilities with other non-COVID infected detainees did not in itself raise an issue under article 3.

Measures applied by the authorities at the time had been adequate and proportionate to prevent and limit the spread of the disease, concluded the Court, adding that if the applicant were to contract the infection there was nothing showing that qualified assistance would not be available.

Lawyer Wayne Jordash, practising in The Hague, represented the applicant. State Advocate Chris Soler and lawyer Julian Vella from the State Advocate’s Office, represented the government. Lawyer Mario Mifsud represented former director of prisons Alex Dalli.

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