Yorgen Fenech, who has been in custody for more than three years awaiting trial over the murder of Daphne Caruana Galizia, has complained about his “protracted detention” before the European Court of Human Rights in a bid to finally secure release on bail.

After 15 failed bail applications before the Maltese courts, his lawyers claim that the longer his detention “the more generic, repetitive and stereotyped the authorities’ refusals are becoming”.

They argue the Maltese courts have not “duly substantiated” his detention.

The courts turned down Fenech’s first request for bail, filed a month after his arraignment in November 2019, due to the risk of tampering with evidence and disturbance of public order.

During the subsequent compilation of evidence, which went on for one and a half years, Fenech’s lawyers filed eight bail applications to get Fenech released from preventive arrest.

Every attempt failed.

The courts cited reasons ranging from witnesses still having to testify and investigations still under way, to the risk of sparking public disorder and the serious charges carrying a maximum sentence of life in prison. Besides, nothing had changed in the circumstances to justify his release from custody, the courts held.

In May 2021, Fenech’s lawyers filed constitutional proceedings before the First Hall, Civil Court arguing that repeated denial of bail breached Fenech’s fundamental rights.

The application was rejected, with the court saying there was a risk he would abscond, given he was on his yacht on the way to Sicily during his arrest.

The court also held that Fenech was a wealthy businessman whose “many acquaintances” increased the risk of tampering with evidence.

The Constitutional Court confirmed that judgment on appeal.

18 years ago, the ECHR had ruled Meinrad Calleja’s fundamental rights had been breached

A bill of indictment was issued against Fenech in August 2021, moving the case to the pre-trial stage before the Criminal Court.

By this time, Fenech had filed six more bail applications, all rejected.

His lawyers now argue that the rejections may be summed up under two grounds: the risk of absconding and the danger of obstructing the course of justice.

They claim his “protracted detention” breaches his fundamental right to trial within a reasonable time or otherwise to release pending trial in terms of Article 5(3) of the European Convention of Human Rights.

The two grounds for continued detention did not satisfy any of those accepted under the convention and European case law, they argue.

There were no new circumstances justifying detention. Justification for any period of detention, no matter how short, had to be “convincingly demonstrated by the authorities”.

The danger of absconding was not to be gauged solely on the basis of the severity of the charges and normally, such danger decreased with the passage of time.

The reasons cited by the Maltese courts when rejecting Fenech’s request for bail in April 2020 were “identical” to those mentioned in the most recent pronouncement last December.

Moreover, the courts had never addressed certain factors including Fenech’s clean record sheet, the fact that he had been granted police bail four times before being arraigned and had never tried to escape.

Fenech's mother offered her matrimonial home, worth millions

He had also offered a substantial third-party guarantee. Fenech’s mother had offered her matrimonial home, worth millions, as collateral but even that failed to secure bail.

Fenech had also offered to submit to electronic tagging, to have CCTV or police stationed outside his home and to abide by all stringent conditions deemed fit by the courts, his lawyers pointed out.

But to no avail. His position was made worse by the “state’s reluctance to introduce legislative framework to regulate electronic monitoring of persons awaiting trial”.

Five years since the journalist’s assassination, the authorities keep saying that investigations are still “ongoing” even though Police Commissioner Angelo Gafà had declared back in February 2021 that every person involved in the murder had been apprehended.

Meanwhile, the courts seemed to manifest a “persistent reluctance,” Fenech’s lawyers said, by accepting the prosecution’s objections to his bail requests without verifying whether the underlying reasons were true.

They recalled that 18 years ago, the European Court of Human Rights had ruled that Meinrad Calleja’s fundamental rights had been breached because of the time he spent in preventive custody while awaiting trial for his alleged involvement in the attempted murder of the then prime minister’s personal assistant.

Calleja spent nearly five years in custody before the trial which resulted in his acquittal.

Lawyers Charles Mercieca, Gianluca Caruana Curran and Marion Camilleri are counsel to Fenech.