A court has called out for “logistical and legal arrangements to be made as soon as possible” so that the courts might function virtually and proceedings against Yorgen Fenech might resume. 

Fenech, the businessman suspected of having masterminded the car bomb murder of journalist Daphne Caruana Galizia, was last denied bail earlier this month.

This call was made in a decree delivered late on Tuesday following a fresh request for bail, filed urgently last week by the lawyers of the businessman who has been under preventive custody since November, when he was charged with complicity in the assassination of Daphne Caruana Galizia. He pleaded not guilty.

While observing that such situations presented various factors and interests that were “not easy to reconcile”, Mr Justice Aaron Bugeja declared that this was a “very complex” case, involving ongoing investigations that called for “exceptional time and resources”.

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Acknowledging that the longer the period of detention under preventive custody, the stronger the justification needed to support it, the court said that the various interests of the accused, the victims, as well as the State, needed to be reconciled. 

The offences with which Mr Fenech was being charged, including that of complicity in the murder of Daphne Caruana Galizia, were “very serious”, carrying a possible maximum term of life imprisonment. 

The risk of tampering with evidence was “a real” one and not merely “a conjecture”, said the court, noting further that the applicant also presented “a high risk” in so far as his possibility of absconding was concerned. 

Although Fenech was a Maltese national with “strong ties” on the island, yet at the same time he was a person of “sound financial means” with various contacts beyond Malta’s shores, making the risk of absconding even greater. 

His escape would compromise the criminal proceedings since the presence of the accused is an essential prerequisite, said the court, noting further that anyone seeking to slip out of the country  would find ways of bypassing “ordinary and legitimate channels”.

The murder in which Fenech was allegedly involved had “a greater impact than other murders,” went on Mr Justice Bugeja, attributing this to a series of factors including the victim’s personality, her investigative work and writings, as well as the time when the murder was committed, the manner whereby Caruana Galizia was killed and the historical and socio-political circumstances at the time. 

The murder was such as to have an impact even abroad, sparking reactions by international organisations and media. 

The ensuing complex criminal proceedings were to be handled with “special diligence” and offered no room for “short cuts,” pointed out the court, though acknowledging that the emergency sparked by the COVID-19 pandemic had created an additional and useless complication to the case. 

However, the restrictions which brought about the closure of the courts as well as the prisons lockdown, were “justifiable and not capricious nor disproportionate,” the court said.

The current situation was placing a restriction “upon the freedoms of all persons in Malta,” but this was necessary for the sake of ensuring utmost efficacy in the protection against the COVID-19 pandemic and though “onerous” the suspension of court proceedings was done “for the noble and superior cause of safeguarding public health”.

While this “temporary” measure lasted, the court urged that “logistical and legal arrangements be made as soon as possible” to provide for the re-functioning of the courts “virtually”.

This would go some way towards addressing the applicant’s concerns, the court concluded.

In the light of all considerations, the request for bail could not be upheld at this stage, said the court, while ordering the director of prisons to afford “particular attention” to the applicant’s medical requirements especially during this pandemic. 

 In this latest application for bail, the businessman’s lawyers claimed that since the last compilation sitting 10 weeks ago, certain circumstances had changed.

Having endured ‘inhuman and degrading’ treatment behind prison walls, his situation has now been further compounded ever since the prisons were locked down on April 8, thus barring all visits by relatives and blocking effective communication with his lawyers.

The lawyers cited a recent report by the World Health Organisation saying that although during this pandemic “the means of family contact may be restricted in exceptional circumstances for a limited period, it must never be prohibited altogether”.

Though still presumed innocent, Fenech was being deprived of his freedom which was “of the highest importance in a democratic society”.

Moreover, having been medically certified as a vulnerable person, Fenech’s life was likely to be endangered if the infection were to spread to the closed facility.

The Attorney General had rebutted this argument, stressing that on account of the “professional measures” taken by prison authorities, the Corradino Correctional Facility was currently “a safe haven” during this pandemic. 

Gianluca Caruana Curran and Marion Camilleri signed the application. Deputy Attorney General Philip Galea Farrugia prosecuted.

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