The Malta Independent 11 August 2022, Thursday

Human Rights court declares application by Yorgen Fenech partly inadmissible

Tuesday, 30 March 2021, 11:12 Last update: about 2 years ago

In its partial decision in the case of Fenech v. Malta, the European Court of Human Rights (ECHR) has unanimously declared the application partly inadmissible.

The case concerns the aftermath of the applicant’s arrest in 2019 on suspicion of involvement in the murder of Daphne Caruana Galizia. In particular it involves his pre-trial detention during the Covid public-health emergency, precautions around his state of health as a detainee (he has one kidney) and the resulting proceedings before the authorities, in particular their length. The proceedings are ongoing.

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The applicant complained under Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights 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 Article 5 §§ 1, 3 and 4 (right to liberty and security) of the Convention, of the lawfulness of his detention and the inadequacy of the domestic remedies used in that connection. Lastly, relying on Article 6 § 1 (right to a fair trial) the applicant complained that he had been deprived of his right to access to court and to trial within a reasonable timeframe.

Articles 2 (right to life) and 3 (prohibition of inhuman and degrading treatment)

The applicant, in his submissions, described conditions of detention that he characterised as contrary to the Convention, including periods of solitary confinement, insalubrious and cramped conditions, lack of clean and warm clothing, and very limited physical exercise. He highlighted the risk to his life due to the Covid-19 pandemic and his vulnerable status.

The Court considered that it could not, on the basis of the case file, determine the admissibility of these complaints. It decided therefore to give notice of them to the Maltese Government.

Article 5 §§ 1 (c)and 3 (right to liberty and security)

The Court noted at the outset that it had not been contested that the applicant’s detention was based on a “reasonable suspicion” that he had committed the offences with which he was charged.

The Court considered that the fact that the proceedings had been suspended with no appointed date for resumption due to the emergency measures ordered in the light of the Covid-19 pandemic, did not mean that the prosecution had had no intention of bringing the applicant before the competent legal authority. Moreover, the Court observed that the suspension had not exceeded three months. The applicant’s detention had its basis in the Criminal Code and not in the impugned legal notices.

In addition, the Court noted that a decision on each of the four applications for bail lodged by the applicant in his first four-and-a-half months of detention on suspicion of murder had been taken rapidly by the domestic courts, two of the decisions even having been taken despite the courts’ closure. The courts had given detailed decisions substantiating the several grounds justifying the continuation of the applicant’s detention.

As to whether the authorities had acted with due diligence, the Court noted that the applicant had not referred to any failings, delays or omissions on behalf of the authorities, apart from the time the proceedings had been suspended due to the emergency measures. That temporary suspension had been due to the exceptional circumstances surrounding a global pandemic which, as held by the Constitutional Court, justified such lawful measures in the interest of public health, as well as that of the applicant. It followed that it could not be said that the duty of special diligence had not been observed.

Accordingly, the Court held that this complaint was manifestly ill-founded and had to be rejected.

Article 5 § 4 (right to liberty and security)

The Court noted that the main argument behind the applicant’s application on 1 April 2020 had been the introduction of the emergency measures which suspended the committal proceedings, a situation which, in his view, had rendered his detention unlawful. In the domestic court’s view, his request had been premature, or in any event ill-founded given the access he had had to the courts, and it had decided that his detention could not be considered unlawful on that ground. The Court did not find the domestic court’s decision to be arbitrary, nor that it had disregarded the applicant’s argument or its factual basis.

Moreover, the criminal court had ascertained the lawfulness of his detention. The Court therefore concluded that the decision of the criminal court had dealt sufficiently with the applicant’s complaint, based on the arguments in his bail application and went even further covering issues of a substantive and procedural nature not raised by the applicant.

The Court held that this complaint was manifestly ill-founded and had to be rejected.

Article 6 § 1 (right to a fair trial)

The Court noted that the proceedings had to date lasted sixteen months, a length of time which, given the complexity of the case, could not be considered unreasonable.

Furthermore, the applicant had not referred to any failings, delays or omissions on behalf of the authorities, apart from when the proceedings had been suspended due to the emergency measures. There was no indication that the proceedings were not being actively pursued. Therefore, the authorities could not be reproached for their conduct. The fact that no hearings had taken place during his committal proceedings for a period of around three months – during which court work had been stalled due to a worldwide pandemic – did not alter that conclusion. Nor could it be said that as a result of the emergency measures, the essence of the applicant’s right of access to a court had been impaired.

Accordingly, the Court held that this complaint was manifestly ill-founded and had to be rejected. The Court, unanimously, decided to adjourn the examination of the applicant’s complaints under Articles 2 and 3 of the Convention and declared the remainder of the application inadmissible.

Conclusion

In conclusion, the Court found that the complaints under Article 5 §§ 1, 3 and 4 (right to liberty and security) and Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights were manifestly illfounded and had to be rejected.

The Court found that it could not, on the basis of the case file, determine the admissibility of the applicant’s complaints under Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) 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 and his vulnerable status. It decided to give notice of them to the Maltese Government.

Thus, the Court, unanimously, decided to adjourn the examination of the applicant’s complaints under Articles 2 and 3 and declared the remainder of the application inadmissible

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