Five hundred days since his arraignment, Yorgen Fenech has made a fresh bid for freedom, claiming that “arbitrary objections” to his release, unverified by the courts, are breaching his fundamental rights.
Since his arraignment on November 30, 2019, pleading not guilty to complicity in the assassination of Daphne Caruana Galizia, Fenech filed eight bail requests, each of which was turned down by the courts following objections by the prosecution.
Weeks after his arraignment, a first application for bail was rejected in view of the fact that investigations were still “very active,” the court said, adding that tampering with evidence and the public outcry were also grounds for rejection.
Seven more applications followed, pending the ongoing murder compilation, each strongly objected to by the Attorney General and subsequently turned down by the courts.
Granting Fenech release from preventive arrest could prejudice ongoing investigations, possibly result in his escape and could also spark public outcry and disorder, the courts have held.
But Fenech’s lawyers are now arguing that such reasoning is not valid unless supported by evidence to justify the perceived risks, especially when an person, who is still presumed innocent, has been under arrest for “500 days.”
'Breach of rights'
The AG, vested with the roles of “prosecutor, investigator and chief magistrate,” seems to wield power in deciding whether the accused has a right to bail, Fenech’s lawyers argue, challenging the prosecution’s objections as “arbitrary.”
All along the prosecution has been claiming that murder investigations are still ongoing, without ever providing evidence as to who has been investigated or interrogated so far, and what stage the murder probe has reached, they claim.
The lawyers question what could be so “delicate and vulnerable to tampering” that, three years down the line, Fenech should suffer a breach of rights through continued arrest pointing out further that evidence has also been preserved by means of various magisterial inquiries.
Moreover, they argue, the arbitrary nature of the AG’s objections, unverified by the courts, is ever more apparent in the light of a public statement made by Police Commissioner Gafa’ in February, that every person involved in the Caruana Galizia murder, as mastermind or accomplice, has been arrested or charged.
The compilation proceedings have been ongoing for almost a year-and a half and are definitely not at an early stage, they say, yet the courts’ reasoning remains unchanged, never reflecting developments in investigations.
According to Fenech's lawyers, the perceived fear of his escape must be an objective one, based on facts rather than mere hypothesis and the court must assess whether the AG’s objections are “actual and concrete.”
Failing that, they conclude, Fenech’s arrest is arbitrary and unjustified, tantamount to a breach of rights in terms of article 34 of the Constitution and article 5 of the European Convention of Human Rights, his lawyers concluded, requesting the court to issue instructions to safeguard his rights, even by ordering his immediate release.
The application was filed in the First Hall, Civil Court in its constitutional jurisdiction against the State Advocate.
Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca signed the application.