Yorgen Fenech rights breach claims dismissed by the European Court of Human Rights

In his application to the European court, Fenech claims that ever since he had been remanded in custody, he endured a mixture of abusive, unsanitary and unhealthy conditions of detention

Yorgen Fenech
Yorgen Fenech

The European Court of Human Rights has dismissed a case filed by Yorgen Fenech against Malta, ruling that there was no violation of the European Convention on Human Rights with regards to his being initially held in a one-man cell and that the State had not violated its obligation to preserve his health and well-being in the light of measures intended to stop the spread of Covid-19 in prison.

Fenech, the former head of the Tumas Group was arrested on 20 November 2019 on suspicion of involvement in the murder of journalist Daphne Caruana Galizia in October 2017. He was arraigned on 30 November 2019 and charged with promoting, organising or financing an organisation with a view to committing a criminal offence, and of complicity in wilful homicide. Fenech pleaded not guilty to the charges and was remanded in custody and since then has been detained in the Corradino Correctional Facility.

In his application to the European court, Fenech claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention. He also claimed that he was more susceptible to contracting COVID-19 due to the fact that he only had one kidney.

In its decision, handed down in Strasbourg on Tuesday, the European Court of Human Rights (First Section), sitting as a Chamber composed of judges Péter Paczolay, President, Krzysztof Wojtyczek, Alena Poláčková, Gilberto Felici, Raffaele Sabato, Lorraine Schembri Orland, Ioannis Ktistakis, the court observed that Fenech had been placed in a single room upon admission at the order of the prison director. This decision had been made upon medical advice for security and protective reasons and because Fenech had tested positive for drugs.

“It transpired that he was positive for cocaine and that he had a history of drug abuse (heroin and marijuana). The Government noted that his initial drug result, together with the fact that he had been accustomed to a lavish lifestyle, made him a risk profile.”

Col. Alex Dalli, the prison director at the time, had released an affidavit noting that CCF was ‘Drug Free’ and explained that it was the facility’s policy for everyone testing positive for drug use not to be allowed to mix with other inmates until they tested negative. He explained that this was the applicant’s case, where he had remained in the cell at issue until 3 January 2020, at which point the medical staff had declared that, according to regular testing, the applicant was no longer positive for cocaine.

Having determined that Fenech was mentally stable, arrangements were made for his transfer to another division, the court was told.

“The Government also considered that placement in a single room limited the risk of someone communicating with the applicant and attempting to hinder the important investigations being carried out at the time into the assassination. According to the Government, all decisions concerning placements of inmates were taken following a thorough risk assessment to ensure that the prison remained as calm and as safe an environment as possible and that any tensions between inmates were avoided.”

The cell had been equipped with a Turkish-style squat toilet and while no flushing had been available  in order to avoid ligature points and prevent self-harm, noted the court. “Fenech could, at any time during the night or day (contrary to that alleged by the applicant), ask the prison guards to flush the toilet from outside the cell. It also had a large window which could be freely opened by the applicant for fresh air and ventilation. As regards the continuous lighting complained of by the applicant, while it was true that there was no such control from inside the cell, again the guards could see to this.”

Lawyers Chris Soler and Julian Vella representing the Maltese government had also submitted that “the applicant had had sixty minutes of out-of-cell activity during which he had been expected to clean his cell, take a shower and make a phone call (other than to his legal counsel – to whom phone access was unlimited) but he had not been required to eat within that same hour. While cigarettes had not been allowed during the night, a cigarette could be given to the applicant every hour throughout the rest of the day. “

The court noted that the Government argued that the Fenech’s submissions had been “littered with inaccuracies, contradictions, and outright fabrications.” It pointed out that he had in fact once changed his submissions after the government had provided evidence contradicting his false allegations, pointing to his claim that the cell had only artificial lighting, which had later been turned around to say that the window did not provide adequate ventilation.

The court noted that Fenech’s situation was not one of solitary confinement imposed as a sanction resulting from a disciplinary measure, or a conviction – the only two confinement regimes provided in domestic law and that neither had the Government claimed that the situation was one of “removal from association”. The Government submitted that the decision to keep the applicant in a single cell had been taken by the prison director, upon medical advice, for security and protective reasons said the judges.

“However, if the applicant’s risk factors were established for reasons other than his drug consumption, a medical follow up would have been necessary to monitor the risk the applicant could have posed to himself and/or to others prior to his release and the Court draws attention to this serious shortcoming. Indeed, the Court is preoccupied that such a situation could place particularly vulnerable inmates at risk, and it emphasizes that such a measure requires regulation and rigorous adherence to medical protocols to safeguard against such risk,” said the court, but in the absence of any clarification on the matter, noted that in this case, Fenech had not claimed that he needed psychiatric or even medical help during such time. “Quite the contrary.”

Fenech’s initial isolation was only with regards other inmates, pointed out the court, which said that “even in that context, the Government claimed that communication was still possible from behind their cell doors and the applicant did not dispute that. Moreover, it has not been claimed that correspondence was in any way limited during such period – and it does not appear that the applicant has suffered any harmful physical or psychological effects in consequence of this regime.”

In August 2020, Fenech’s cell had been furnished with a toaster, kettle, TV, fire extinguisher, fridge and washing machine following complaints he lodged in January 2020. Prior to this, he would wash his clothes in the wash basin, the judges observed, ruling that “with respect to the applicant’s other material complaints – the mere fact that detainees in the dormitory slept on bunk beds and shared a toilet, shower, and handbasin (between four to six people), does not constitute inhuman or degrading treatment, as is the case with washing clothes and dishes in the same basin. Moreover, in this respect the applicant admitted that he had eventually been provided with a washing machine.”

It was also noted that Fenech had complained that for a certain unspecified period he had had no access to the gym, to his family, to church or other activities The Court observed, however, that the limitations complained of occurred within a very specific context, namely during a public health emergency

“This was a situation endured by persons at liberty all over the world, and the applicant was no exception. Bearing in mind all the above, the Court considers that the applicant’s conditions of detention were not in breach of Article 3.”

The court noted that “regrettably” the Government had failed to explain in detail to what extent that contingency plan was put in place once the pandemic hit Malta, and once the first case of Covid-19 was detected in CCF. “Nor did they give details about the numbers of contaminated inmates throughout the relevant period, but solely submitted that none of the ones who tested positive had died. They also failed to give any temporal context to the measures that were put in place – measures which, however, the applicant admitted had been put in place.”

“The Court considers that these measures certainly diminished the risk of wide-spread contamination within the prison thus preserving the health and safety of inmates and staff.”

With regards to Fenech’s Covid-19 complaint, the Court pointed out that “even assuming that the applicant had to contract Covid-19 while in prison, there was no indication that qualified assistance would not be available, thus dispelling any ulterior anxiety in this respect. In particular, quite apart from the regular medical staff, a medical centre was also inaugurated in March 2021.

“In these circumstances the Court does not find that the authorities failed to secure the applicant’s health…nor that he was subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

“It follows that there has been no violation of Article 3.”

The court unanimously ruled that that there has been no violation of Article 3 of the Convention in relation to the period from 30 November 2019 to date and that that there had been “no violation of Article 3 of the Convention in relation to the State’s the positive obligation to preserve the health and well-being of the applicant.”

British lawyer Wayne Jordash represented Fenech in the proceedings. State Advocate Chris Soler and lawyer Julian Vella from the Office of the State Advocate represented Malta. Lawyer Mario Mifsud represented former prison director Col Alex Dalli.