Constitutional Court dismisses Yorgen Fenech's fundamental rights breach claim over bail refusals

Three judges of the Constitutional Court have dismissed an appeal filed by Yorgen Fenech, the millionaire businessman indicted for allegedly commissioning the murder of Daphne Caruana Galizia, confirming a previous rejection of Fenech’s claim that his prolonged detention in preventive custody constituted a breach of his fundamental rights.

Fenech’s lawyers had pointed out that to date, their client had filed nine requests for bail, all of which have been rejected. In a decision handed down in April this year, the First Hall of the Civil Court in its Constitutional jurisdiction had declared that this did not constitute a breach of Fenech’s rights, rejecting his claim as well as ordering him to suffer the costs of the case.

Fenech had then filed an appeal to the April judgement, with the case subsequently being adjourned to this morning for judgement.

When the case was called, Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr. Justice Anthony Ellul confirmed the decision of the First Hall.

The judges noted that far from being generic, as Fenech’s lawyers had suggested, the decisions to refuse his bail requests had all been well researched and reasoned, and had taken into account developments which had emerged as the compilation of evidence against Fenech continued.

The last decree denying him bail that had been issued during the compilation of evidence had been based on the fact that he was considered as being at a high risk of absconding. Fenech’s defence had argued that as that court had pointed out that the prosecution did not need to prove the basis of this fear, this meant that he was being presumed guilty.

This argument was rejected, however, with the judges pointing out that an accurate reading of the decree showed that the court was not saying that the prosecution did not need to bring any evidence, but rather that it did not need to prove that Fenech was certainly going to do what his detention was preventing him from doing “such as for example, tampering with evidence.”

The judges also observed that the First Hall was justified in taking Fenech’s enormous wealth into account in its decision, and noting that the freezing orders issued against him did nothing to reduce the risk of flight, as evidence had emerged that the appellant also held accounts abroad, not only outside Malta, but also outside the European Union and which therefore would not be subject to the freezing orders. In addition to this, the evidence indicated that Fenech’s family members were prepared to help him if need be.

Fenech’s argument that denying him bail amounted to discrimination against him due to the fact that he was extraordinarily wealthy was likewise given short shrift by the judges, who highlighted the fact that European Court judgments had accepted that the financial means available to a person accused of a crime were a relevant factor in establishing whether that person was a flight risk.

“In this case it is clear that it is much easier for a person with substantial means to escape from a country while criminal proceedings are pending against him. This is abundantly evident from the extracts exhibited in the acts which show prima facie plans to escape involving a private yacht, the rental of property abroad in the name of the foreign third party which was going to cost over €10,000 for two weeks and that even the possibility of the use of a private aircraft for an urgent flight without identity checks, which would have cost thousands of euros, had also been explored.”

“Therefore, it is clear that the taking into consideration of the means of the appellant were not only justified but necessary,” ruled the court.

Also rebuffed by the court was the argument that Fenech had not attempted to abscond whilst on police bail, the judges pointing out that during that time Fenech had been closely monitored at all time and even had police officers inside his residence.

The fear of Fenech tampering with evidence was also justified, added the court, in view of the fact that a screenshot of Melvin Theuma’s Presidential Pardon had been found stored on Fenech’s mobile phone, something which Fenech had not provided an explanation for.

Finally, it was noted that the investigation into Caruana Galizia’s killing was still ongoing due to new developments which had emerged after the Commissioner of Police had declared that all the people involved in the murder had been charged. There was also nothing in the acts to suggest that this sensitive and complex investigation was not being carried out diligently, said the court, dismissing the case, of which it also ordered Fenech to bear the costs.