In its partial decision in the case of Fenech vs Malta, the European Court of Human Rights unanimously declared the application partly inadmissible, saying murder suspect Yorgen Fenech’s complaints under Article 5 and 6 were “manifestly ill-founded and had to be rejected”.

Fenech, represented in this case by a lawyer (W. Jordash) practising in The Hague, filed an application before the ECtHR on 6 May last year claiming that his human rights were being breached by the Maltese courts’ decision not to grant him bail, particularly during the COVID-19 public health emergency. Fenech is accused of being the mastermind in the assassination of Daphne Caruana Galizia by a car

Fenech lodged his complaints under Article 2 (right to life) and Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights in respect of his conditions of detention, and the State’s alleged failure to protect his health with regard to the Covid-19 pandemic and his ‘vulnerable’ status.

He also complained, under Articles 5 and 6 about the legality of his detention, the courts’ refusal to grant him bail; and he also alleged that he was being deprived of the right of access to a court to challenge the prosecution case, as well as being deprived of his right to trial within a reasonable time.

Repeated requests for bail

Fenech requested bail on 18 December 2019 and 30 January 2020, but both requests were dismissed by the Maltese courts on the grounds that evidence risked being tampered with and the course of justice interrupted since some individuals involved in the alleged crime had not yet been summoned.

On 13 March 2020, court proceedings were interrupted because of the COVID-19 emergency measures. Fenech requested bail again on 6 April 2020, arguing that the decision to suspend all criminal proceedings until an unspecified date amounted to an indefinite suspension and meant he could not be tried within a reasonable amount of time.

Fenech applied for bail a fourth time on 16 April 2020, raising again the issue of the suspension of court proceedings which he alleged, in light of the risks of contracting Covid-19 while incarcerated, violated his right to life and freedom from ill-treatment.

On 1 May, Fenech then presented an application to Malta’s Civil Court (First Hall) in its constitutional jurisdiction claiming his rights were being breached under Articles 5. In this instance, the court upheld his claim on the basis that the regulations suspending court proceedings were in breach of Article 5 of the Convention and the corresponding article of the Constitution.

The First Hall of the Civil Court ordered that the suspension be lifted and that the record of the proceedings be sent back to the Court of Magistrates as a Court of Criminal Inquiry for proceedings to continue, holding also that it would then be up to the Court of Magistrates to decide on whether to grant bail or not

However, following an appeal by the State Advocate, the Constitutional Court reversed the first-instance judgment and concluded that Fenech’s rights had not been breached by the COVID-19 public health emergency order which had abruptly stopped the court proceedings and that he had not suffered indefinite detention as alleged.

The measures suspending proceedings had been put in place on the basis of the available scientific knowledge at the time and therefore had not been arbitrary. They were considered legitimate, necessary and proportionate, and Fenech’s detention could not be considered arbitrary or indefinite, nor could it be said that he had had no remedy in respect of his detention.

The considerations by Malta’s Constitutional Court were reiterated by the ECtHR in its decision published on 29 March. The ECtHR found that Fenech’s complaints under Article 5 and 6 were “manifestly ill-founded and had to be rejected”. In other words, the Court did not even consider it necessary to hear, in respect of these allegations, what the Maltese government had to say, and rejected these allegations based solely on what the applicant put before it.

The Court, however, found that it could not, on the basis of the case file, determine the admissibility of Fenech’s complaints under Articles 2 and 3 of the European Convention regarding his conditions of detention and the State’s alleged failure to protect his health with regard to the Covid-19 pandemic. The Court, therefore, decided to give notice of them to the Maltese Government.