The businessman accused of being behind the murder of Daphne Caruana Galizia has failed in his bid to obtain release from preventive arrest by challenging the legality of his ‘indefinite’ detention. 

Yorgen Fenech was escorted to court on Thursday morning under exceptional circumstances in line with the legal notice issued under the Public Health Act which had effectively brought all court cases to a standstill, save those deemed urgent. 

This latest bid stemmed from an application filed on Wednesday by Mr Fenech’s lawyers arguing that since all court proceedings, including compilations of evidence, had been suspended indefinitely, this rendered his continued detention illegal, thereby meriting his immediate release. 

However, the Criminal Court, presided over by Madam Justice Edwina Grima, turned down the request, observing that the applicant was not right in stating that he was being detained indefinitely.

Nor was he correct in saying that his arrest was illegal, the court observed, explaining that the applicant could always ask for bail and could “at any time ask the court to grant him such remedy”.

It was wrong for him to decide beforehand that bail would be denied, she said, pointing out that in spite of the current exceptional circumstances “the courts of justice cannot deny citizens such remedies”.

Moreover, the court suggested that given the present scenario, the legislator ought to devise a way whereby criminal hearings, particularly those where persons are held under preventive arrest, may be conducted by audio-visual means so as to reduce the risk of infection. 

In their application, Fenech’s lawyers argued that the last hearing in the compilation of evidence took place on February 20, with the subsequent hearing scheduled for March 27 being put off in view of the recent public health measures ordering the closure of the law courts.

All legal time limits, including those relative to compilations, were suspended indefinitely. 

This meant that, with no date for a hearing in sight, Fenech’s detention was indefinite and thus illegal and this ran counter to his right to protection against unlawful and arbitrary arrest, his lawyers argued.

“Freedom deserves the highest respect in every society that calls itself democratic,” said the applicant’s lawyers. 

Moreover, they said that Fenech’s situation in jail was further exacerbated by the COVID-19 pandemic, making reference to a recent study by UK Professor Richard Coker who pointed out that detention facilities like Corradino were vulnerable to epidemics, observing that “overcrowding, unsanitary conditions, poor ventilation….would likely increase the speed with which an epidemic unfolded”.

This made Fenech’s continued detention a threat to his health, unjust treatment and a threat to his very life, the lawyers argued.

The court rejected these arguments, also making reference to Legal Notice 115/20, whereby Superintendent of Public Health declared a state of emergency in view of the COVID-19 pandemic. 

Lawyers Marion Camilleri and Gianluca Caruana Curran signed the application.