Yorgen Fenech insists on bail: ‘Presumption of innocence not just words on a slab in Strasbourg’

Daphne Caruana Galizia murder suspect Yorgen Fenech has attacked the powers of the Superintendent of Public Health amongst other things, as he continues to contest his continued state of arrest.

Fenech is coming up on six months in custody after being named by whistleblower Melvin Theuma as having masterminded the plot to kill the journalist. All of his numerous requests for bail have so far been rejected by the courts.

His lawyers, Gianluca Caruana Curran and Marion Camilleri, filed an application to the First Hall of the Civil Court in its Constitutional jurisdiction earlier this week, arguing that the Health Superintendent’s decision not to open the courts was “arbitrary and lacking any sense of objectivity or clear criteria,” due to her lack of security of tenure.

It was “immensely dangerous” for the Criminal court to state that the COVID-19 pandemic had led to a state of public emergency. The state of public emergency declared under Subsidiary Legislation 465.36 did not qualify as the state of emergency envisaged by the Constitution, argued his lawyers.

The idea that detention could continue for an unlimited and unpredictable period was contrary to the principle of legal certainty, they said, quoting European jurisprudence to this effect.

The Attorney General had submitted, and the Criminal Court had also remarked, that Fenech could ask the court to order the Attorney General to continue the compilation of evidence, but that this had not been done.

Caruana Curran and Camilleri argued, however, that this reasoning had been deplored in other, analogous, cases.

His detention due to the continued closure of the courts did not satisfy the test of foreseeability and safeguards against arbitrariness established in ECHR judgments.

The superintendent’s powers and exclusive jurisdiction were “certainly arbitrary powers and contrary to the rule of law,” they said.

Until the continuation of the compilation of evidence against Fenech, there would be no effective revision of his arrest, argued the lawyers.

Calling for his immediate release, they said the situation was unacceptable because the accused is presumed innocent, which presumption “is not just words chiselled into a marble slab in Strasbourg,” but which should translate into a tangible right for him.