The Malta Independent 25 May 2020, Monday

Judge dismisses Yorgen Fenech application to have detention declared unlawful

Thursday, 2 April 2020, 13:49 Last update: about 3 months ago

A judge has dismissed an application by Yorgen Fenech to have his detention declared unlawful in the light of Legal Notices declaring the indefinite suspension of court hearings.

Fenech is accused of complicity in the murder of journalist Daphne Caruana Galizia.

In court today, Yorgen Fenech’s lawyers criticised legal notices which suspended all court sittings indefinitely, saying they denuded the accused of the judicial safeguards against illegal arrest and detention.

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Madam Justice Edwina Grima heard the AG argue that the Legal Notice as published did not render the arrest illegal, with the defence counter-arguing that the way the law was applied was wrong, not the law itself.

In lengthy submissions, lawyer Gianluca Caruana Curran told the judge that he felt the arrest of Yorgen Fenech was now illegal as Fenech had no date where he could expect his arrest to end. Last night at around 8pm a legal notice was published through which the superintendent of public health retrospectively declared a public health emergency from 7 March 2020, thereby legitimising previously issued Legal Notices which introduced measures only applicable in a public emergency.

The situation is abnormal, he conceded, but pointed out that it was the AG who had decided to introduce Legal Notices 61 and 65 of 2020 which closed the courts and suspended legal timeframes indefinitely. These new laws had removed safeguards meant to protect the citizen, Caruana Curran said.

“As the court knows, no evidence is behind heard or witnesses testifying… the Legal Notices have now created an indefinite situation, where we have no date for when the case will continue. In America they were going to do things like us but were stopped by Congress as it would have created a huge humanitarian problems.”

“As things stand, we have everything at a standstill, accused has no idea what is going to happen and more time will only create more problems. It is not right to keep client under arrest”

“All cases are put off sine die. They had 4 months to indict him. More than ever before constitutional safeguards are needed. Under our constitution, the safeguards are there to avoid abuses, but why are we being sent back to the draconian past. The case against Fenech has been postponed for 4 months waiting for 3 witnesses. He is still in prison and it is not a place where an innocent man should be,” said the lawyer.

Since the last sitting, Fenech has been in prison for six weeks with no end in sight, Caruana Curran pointed out. “Are we going to leave a man presumed innocent in custody ad infinitum? In the UK courts are still open, using video conferencing, but over here the safeguards under our constitution are being taken away.”

In the USA, the DOJ sought to suspend trials indefinitely as in Malta but there is a class action suit blocking it. And this is why it was not adopted.

“I cannot ask for bail because nothing has changed. I can do nothing I couldn’t even bring their witnesses for cross-examination. We are literally stuck.”

Lawyer Angele Vella from the Office of the Attorney General replied that the AG believed the request was frivolous and vexatious because the detention is not indefinite. Although the courts were suspended, the legal notice goes on to say that it doesn’t preclude the opening of the courts in urgent cases. “This is not a joke, these laws are not being introduced for laughs,” said the lawyer.

“Just yesterday the courts were opened for an urgent request for bail. This is why the defence should have just filed a request for bail,” she said. “But this is not a bail request, so where is the illegality of the arrest? If Fenech wanted to attack a legal notice this was “not the forum and not the method.”

“We are facing a global state of emergency, do we need the permission of the defence to introduce a law?” she said, reminding the defence that the arrest had been declared legal.

The laws could not have been issued in a better manner, Vella argued. The superintendent of public health had every power to do what was done. “In addition to this, the 20 months of arrest have not been exceeded, said the lawyer.”

After considering the issue in chambers for a time, the judge returned.

She noted that the accused had been accused of complicity in the murder of Daphne Caruana Galizia and the financing of criminal organisations. A sitting scheduled for 27 March was not held. The applicant had argued that constitutional guarantees were not being safeguarded, but the court said it didn’t agree.

The judge observed that it was not true that he had been remanded in custody indefinitely, but that he had legal avenues to address this, evidenced by the fact that he was in court today. Nothing precluded the court from ordering the opening of the courts in urgent cases.

This meant that the courts should always give a remedy to the public. The accused had not made a request to continue the case or grant him bail…but the court could not fail to give a remedy. The accused is not right when he says he is arrested indefinite because he has a remedy. He had been arrested and charged within 48 hours, had tried unsuccessfully to be granted bail and his case was being heard expeditiously.
The court said the legal requirements under the article of the law cited were not present.

Fenech’s request to have his continued detention declared unlawful was premature, said the court. Now that legal timeframes had been suspended, he had the right to seek the court’s protection from indefinite arrest.

This said, the legislator should draw up legislation to allow audio-visual sittings to prevent spreading of disease, said the judge, adding that Fenech’s arrest was not illegal until declared so by the competent court. European Law allowed derogations from human rights in cases of national emergencies, she said. “The right to liberty is not an absolute right, COVID is an international emergency, not just a national one. This meant that the accused’s arrest was not illegal and arbitrary, in the light of the fact that he had access to legal remedies.

 

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