Yorgen Fenech’s rights were not breached by the Covid-19 public health emergency order, an appeals court ruled, overturning an original decision.
A court had found in May that Fenech’s right to protection from arbitrary arrest or detention had been breached by the order which had suspended judicial proceedings but allowed courts to decide whether to hear cases. The judgment had been handed down by Mr Justice Lawrence Mintoff.
Both the State Advocated and the Superintendent of Public Health had appealed the decision.
The Superior Court of Appeal has now said that this discretion is a crucial safeguard, and that allowing such “judicial control over measures restricting fundamental human rights is deemed as fundamental to democracy and the rule of law.”
The court said that, like other European countries, Malta had opted for a public health emergency, which is called when there is an actual or imminent risk to public health. The Covid-19 pandemic presents such a risk.
The court declared that Fenech’s rights had not been breached.
In a separate case, PN MP Jason Azzopardi was cautioned by a Magistrate over comments he had given during a radio interview. Azzopardi is appearing for the Caruana Galizia family in the compilation of evidence against Fenech.
In a recent interview, Azzopardi had said that one of the three murder suspects, Vince Muscat ‘il-Kohhu’, had implicated a Cabinet member in a serious crime.
Fenech’s lawyers later claimed that Azzopardi’s comments breached their client’s rights to be presumed innocent until proven otherwise. They also said Azzopardi was speaking both as a lawyer who was party to the case and as an MP who could influence his constituents.
They asked the court for a remedy. Both requests were turned down, with the magistrate noting that, as parte civile lawyer, Azzopardi cannot be expected to be impartial in the proceeings.
She also dismissed Fenech’s claims that Azzopardi’s public role put him in breach of the law when he made his statements during the radio show.
She said, however, that Azzopardi should have exercised greater caution given his political role.
While the victim’s family cannot be precluded from expressings its views on guilt or otherwise, when the parte civile lawyer was also a public person with a political role, the significance of public statements attributing guilt to Fenech, “did not remain only subjective opinions of an interested party”.
The court said it believes that Azzopardi, “cannot divest himself completely from his public role to make declarations of guilt about Yorgen Fenech simply because at the same time he acts as the lawyer for the Caruana Galizia family because this distinction can become artificial.”