Updated 11.05am

Yorgen Fenech’s rights were violated through the coronavirus public health emergency order that brought court proceedings to a standstill, a judge has ruled. 

Judge Lawrence Mintoff ruled that his right to protection from arbitrary arrest or detention was breached by the order issued by Superintendent of Public Health, which suspended legal time-limits indefinitely. 

Lawyers for Fenech, who stands accused of conspiring to murder journalist Daphne Caruana Galizia in October 2017, had challenged the constitutional validity of the order. 

He has been repeatedly refused bail and court proceedings have been delayed because of COVID-19 restrictions.

Legal notices 61 and 65 effectively meant that everyone under preventive arrest, including Fenech, was cast into a period of uncertainty, having no idea when their case would resume.

It was up to the courts to decide which cases were deemed most urgent or which matters of public interest were to be heard, while the public emergency persisted.

Fenech’s lawyers argued that the rule of law had been relegated to second place. 

Superintendent for Public Health Charmaine Gauci had defended the decision to shut down the law courts, saying that such an unprecedented measure was warranted by the risks posed by the COVID-19 pandemic.

Yet, on Friday morning the First Hall, Civil Court declared that the rights of the applicant were violated and ordered that his compilation of evidence to proceed.

In a 59-page long judgment, that is bound to impact other judicial proceedings, Justice Mintoff concluded that the Attorney General had wrongly relied on the legal notices when holding back the continuation of Fenech’s compilation of evidence. 

Cases should have been considered as 'urgent'

The court went even further, pointing out that all persons under preventive arrest remained in the same situation and therefore, their cases ought to have been considered, from day one, as urgent and thus meriting immediate continuation. 

This would have done away with the need to file applications to have any particular case dealt with as "urgent", the judge said, explaining how the procedure envisaged under the legal notices could possibly result in “conflicting and inconsistent decisions” when, in reality, all those under preventive arrest were in an identical situation.

Under the COVID-19 scenario, the relative authorities needed to strike a “fair and just balance between considerations of public health and the fundamental rights of individuals,” the court declared.

Instead, the pandemic crisis had resulted in “an anomalous state of affairs” wherein certain compilation proceedings continued, even though the accused were out on bail, while other compilation proceedings, (as in the case of Fenech) were put off indefinitely even though the accused were under preventive arrest. 

In such circumstances, the law had to be “sufficiently accessible, precise and foreseeable in its application so as to avoid any risk of arbitrariness,” the court said.

It was “not just” for the courts to have been burdened with the duty of having to determine which cases were urgent and which were not, said Justice Mintoff, adding that this “was strictly the duty of the Superintendent of Public Health together with the Courts Services Agency”.

It was for those authorities to carry out a risk assessment so that court proceedings could continue, even through “a wider and more effective use of information technology,” said the court, echoing a similar call by the Chamber of Advocates. 

The court said it was up to the magistrate presiding to reassess Fenech's request for bail.

The compilation of evidence has been scheduled to continue on Monday.

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca represented Fenech in the case.

Independent journalism costs money. Support Times of Malta for the price of a coffee.

Support Us