Fenech’s bail is an indictment of the criminal justice system

It seems the government has slept on a reform to ensure a more efficient criminal justice system, which is disturbing when one considers the zeal and speed by which it moved forward on a Bill to restrict the way ordinary citizens can request a magisterial inquiry

Yorgen Fenech’s release on bail after five years of detention has shocked the country because the reasons for which he was denied freedom all this time still subsist. 

Fenech is charged with masterminding the murder of Daphne Caruna Galizia. He is denying the charges. 

However, here is a man, who since 2019 has had his repeated requests for bail turned down because the court feared he would tamper with evidence, apart from constituting a flight risk. 

Fenech is also a businessperson with ample financial means and contacts beyond Malta’s shores. Indeed, when he was arrested in November 2019, Fenech had just departed from the Portomaso yacht marina aboard his yacht. He was stopped out at sea by an Armed Forces of Malta patrol boat and escorted back. 

Furthermore, evidence presented in court also shows that prior to his arrest, Fenech had discussed with family members, ways and means to leave Malta. 

We also have to keep in mind that at the time, Fenech was being kept abreast of police investigations into the murder of Daphne Caruana Galizia by the former chief of staff Keith Schembri, who is facing separate proceedings in this regard. 

In her ruling on Friday, Judge Edwina Grima acknowledged the risks associated with Fenech, which the prosecution forcefully put forward each time it opposed bail, still persist. But she added that the length of his preventive detention was now becoming a factor the court could no longer ignore. 

No date has yet been set for his trial amid ongoing judicial proceedings. Malta’s criminal justice system functions on the premise that a person remains innocent until proven guilty and Fenech has had his liberty denied since being charged in late 2019. 

In the circumstances, the judge ruled that the guarantees provided by the accused – a bail deposit of €80,000, a personal guarantee of €120,000, and a guarantee provided by his aunt through her shareholding in the Tumas Group Company – were strong enough to justify the granting of bail. 

Significantly, one of the conditions the judge imposed on Fenech was not to communicate in any way possible, neither through third parties, with middleman Melvin Theuma – a key prosecution witness – and Keith Schembri. The judge also issued a protection order in favour of Caruana Galizia’s family. 

Nonetheless, despite the conditions imposed on Fenech, which also include a curfew between 5:00pm and 11:00am, the court’s decision remains deeply disturbing. 

The crime Fenech is accused of had a profound impact not only on the victim’s family but also on the rest of society. Fenech’s human rights have to be protected but in doing so a balance has to be found that also protects society’s well-being and peace of mind. Fenech’s release on bail creates unease. 

But the situation exposes once again the problem of lengthy judicial processes that benefit no one. It has been five years since Fenech’s arrest and more than seven years since Caruana Galizia’s brutal murder. Justice has not yet been served and this is causing prolonged anguish to the victim’s family; creates an injustice with the accused; and leaves society in a permanent state of anxiety. The same can be said of numerous other murder cases that remain pending before the courts. 

A reform is required to ensure a more efficient criminal justice system is in place – one that balances the rights of the accused with those of the victim.  

Justice Minister Jonathan Attard had proposed such a reform in April 2023 and issued a document for public consultation. The proposal was intended to speed up the compilation of evidence stage and make the process more efficient. 

We have heard nothing about this reform since then. Not even the feedback received during the public consultation has been published, let alone a Bill. It seems the government has slept on it, which is disturbing when one considers the zeal and speed by which it moved forward on a Bill to restrict the way ordinary citizens can request a magisterial inquiry. 

Yorgen Fenech’s release on bail is an indictment of the criminal justice system. Fixing it should be a priority.