Judge says risk of prejudice to ongoing Caruana Galizia investigation outweighs Yorgen Fenech's right to bail

The Criminal Court has ruled that the continued detention of the man accused of organising the murder of journalist Daphne Caruana Galizia is still justified.

In a six-page decree dismissing Yorgen Fenech's request for bail, Madame Justice Edwina Grima justified the decision in view of the risk of pressure on the ongoing investigation and the scale of the criminality involved.

She said the court’s decision was in line with the doctrines espoused by the jurisprudence of the European Court of Human Rights, which had developed four reasons which could justify the detention of someone accused of a crime, namely: the risk that the accused will fail to appear for trial; the risk that the accused, if released, would take action to prejudice the administration of justice; commit further offences; or cause public disorder.

“It is not in doubt that the facts of this case concern the commission of a serious crime, the repercussions of which have been felt both on a national and international level,” observed the court, explaining that when dealing with a request for bail, it must be “firmly satisfied” that none of the risks laid down in the Criminal Code existed.

The right to bail is not automatic, said the judge, adding that “above all, prejudice to the correct administration of justice must be prevented from taking place.”

The judge noted that the Constitutional Court had expressed itself over the circumstances surrounding the crime with which Fenech is accused, saying that the murder was a “profound attack on the fundamental right to freedom of expression of journalists who have a right to investigate, ask and report”.

Madame Justice Grima also noted the months of public outcry and protests, as well as debates and international reports on the murder, saying that it was in the public interest that investigations into this murder continue ceaselessly in order to establish whether other persons should be accused of crimes in connection with the murder.

“In the circumstances, the Court concludes without hesitation that in a case like this, which deals with criminal activity on this scale, the risk, if bail is given, that some form of pressure on other persons is real and high,” she decreed.

Citing the 2017 ECHR case of Lisovskij v. Lithuania, the judge quoted the court saying: “The Court also reiterates that cases which concern organised crime inevitably present more difficulties for the investigative authorities and courts in determining the facts and the degree of responsibility of each member of the criminal organisation. In cases of this kind, continuous control and limitation of the defendants’ ability to contact each other and other individuals may be essential to avoid their absconding, tampering with evidence and influencing or threatening witnesses. Accordingly, longer periods of detention than in other cases may be reasonable.”

Madame Justice Grima’s decision goes on to explain that the primary consideration in a bail request tied to such a case is the danger of prejudice to the administration of justice, “not only due to the real fear, as previously said, that the accused absconds, but also that of interference with evidence and ongoing investigations.”

The judge also observed that these fears were already reflected in a decree of the Criminal Court, differently presided, issued a few months ago, saying that they “at least at this stage, still justify the detention of the applicant.”