Yorgen Fenech’s rights breached by COVID-19 restrictions, court rules

Yorgen Fenech’s rights were breached by public health restrictions imposed because of COVID-19, a court has ruled.

Mr. Justice Lawrence Mintoff delivered the ruling this morning in a constitutional case filed by Fenech, the alleged mastermind behind the murder of journalist Daphne Caruana Galizia, against the Superintendent of Public Health and the State Advocate.

Lawyers Gianluca Caruana Curran, Marion Camilleri and Charles Mercieca, appearing for Fenech, had argued amongst other things that the Legal Notices which suspended all court proceedings due to the pandemic had infringed his right to justice within a reasonable time.

In his decision, handed down today, the judge declared that Fenech’s rights had indeed been breached and that the compilation of evidence against Fenech should resume.

Lawyers Maurizio Cordina and Antoine Agius Bonnici represented the Office of the State Advocate.

“Doubtless that the facts in issue in this case are wider than those reflected in the acts,” noted the court, pointing out that it was not contested that the magisterial inquiry into the murder of Caruana Galizia was still open, with strong suspicion that not all the persons involved had been intercepted. 

This meant that there was a real risk to the administration of justice in this case. 

Fenech's lawyers had argued that fundamental Constitutional rights could never be derogated from unless a declaration of a state of emergency is made. The constitution lays out how this would take place and this had not occurred in this case, they said.

The State Advocate had submitted that the right to liberty was not absolute and that this arrest was necessary to prevent his escape from Malta.

The superintendent had included safeguards in the legal notices to allow urgent hearings and had not shut the courts and “thrown away the key,” it was argued.

The Court observed that the case was not a request for bail but one to investigate whether LN 61 and 65 of 2020 and the suspension sine die of the compilation  of evidence breached Fenech’s fundamental human rights.

The judge said that every compilation of evidence about persons under arrest - and therefore presumed innocent - are considered as urgent a priori.

This apart from the fact that in any case of pandemic there was to be a balance between the public health considerations and the fundamental rights of the individual.

The fact that the state of affairs complained of by the applicant was one of detention for an unlimited and unpredictable period fell foul of safeguards against arbitrary detention.

The Superintendent of Public Health had testified that the court was permitted to hear urgent cases or those of public interest and that it would give advice as to measures to be taken in such circumstances.

“It is the court’s considered opinion that the risk assessment on the publicly-accessible areas of the courts...should have been carried out by the Superintendent of Public Health and it should not have been left to the courts to evaluate as to whether considerations of public health should or should not prevail over the fundamental rights of the individual...It is not just that this burden is placed on the courts through article 3(2) of Legal Notice 61/2020.”

“Certainly it should not be the job of the courts to evaluate the risks to public health in the present situation, and if the court environment is adequately safe in the circumstances and what mitigation measures are to be taken for this aim. This is strictly the competence of the Superintendence of Public Health and the Agency for Court Services,” who should ensure that risk assessments and effective use of technology allow the courts to function safely, said the judge.

Mr. Justice Mintoff ruled that the Attorney General should not have rested on the Legal Notices to fail to send the acts of the compilation of evidence against Fenech back to the Courts of Magistrates to continue the compilation of evidence.

The compilation of evidence against Fenech is scheduled to continue on Monday.