Temporary suspension of procedures due to coronavirus. The Court’s first approach to pandemic problems
JUDGMENT
Fenech v. Malta 30.03.2021 (app. no. 19090/20)
SUMMARY
The case concerns the aftermath of the applicant’s arrest in 2019 on suspicion of involvement in the
murder of Daphne Caruana Galizia, a noted Maltese journalist who was assassinated in 2017. In
particular it involves his pre-trial detention during the Covid public-health emergency, precautions
around his state of health as a detainee (he has one kidney) and the resulting proceedings before
the authorities, in particular their length. The proceedings are ongoing.
The Court found that the complaints under Article 5 §§ 1, 3 and 4 (right to liberty and security) and
Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights were manifestly illfounded and had to be rejected.
The Court found that it could not, on the basis of the case file, determine the admissibility of the
applicant’s complaints under Articles 2 (right to life) and 3 (prohibition of inhuman or degrading
treatment) of the European Convention regarding his conditions of detention and the State’s alleged
failure to protect his health with regard to the Covid-19 pandemic and his vulnerable status. It
decided to give notice of them to the Maltese Government.
Thus, the Court, unanimously, decided to adjourn the examination of the applicant’s complaints
under Articles 2 and 3 and declared the remainder of the application inadmissible.
PROVISIONS
Article 2
Article 3
Article 5
Article 6
PRINCIPAL FACTS
The applicant, Yorgen Fenech, is a Maltese national who was born in 1981 and lives in St Julian’s
(Malta).
The applicant is a businessman and the former head of the Tumas Group. He was arrested on 20
November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne Caruana
Galizia in October 2017.
On 30 November 2019 the applicant was arraigned and charged with promoting, organising or
financing an organisation with a view to committing a criminal offence, and of complicity in wilful
homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and since
then has been detained in the Corradino Correctional Facility.
The applicant’s first two bail requests – made on 18 December 2019 and 30 January 2020 – were
both dismissed inter alia on the grounds that that there was a risk that evidence might be tampered
with and the course of justice disrupted, especially as there were strong suspicions that some of the
wrongdoers involved in the crime had not yet been summoned. It was also feared that his release
could give rise to public disorder.
From 16 March 2020 the criminal proceedings were interrupted owing to emergency measures
introduced in respect to the Covid-19 public-health crisis. This led to the applicant lodging, on 1 April
2020, an application alleging unlawful detention, and a further request for bail on 6 April 2020.
He argued that the decision to suspend all criminal proceedings until an unspecified date amounted
to an indefinite suspension, which meant that he could not be tried within a reasonable timeframe.
In his view, that, together with the absence of any certainty, specificity or foreseeability concerning when the courts might reopen, meant that his continued detention lacked any legal basis and rendered his detention unlawful. Both applications were dismissed by the criminal court.
On 8 April 2020 the applicant lodged an application for the proceedings to be resumed. The criminal
court considered that as the proceedings were still at inquiry stage strict procedural laws meant that
there would be too many people in the courtroom in a confined space for a considerable length of
time, and the risk of contagion, including for the applicant himself, was too great. It therefore
dismissed his request.
Then, on 16 April 2020 the applicant applied for bail a fourth time, again raising the issue of the
suspension of court proceedings which he considered, together with the risks of contracting Covid19 whilst incarcerated, violated his right to life and freedom from ill-treatment. In particular, he noted that his medical condition – the previous loss of a kidney – placed him in significant danger
concerning his health and chances of survival if he were to contract Covid-19. The application for bail
was dismissed on 21 April 2020. Nonetheless, given his medical situation, the criminal court ordered
that particular attention be paid to the applicant’s medical needs.
The applicant instituted constitutional redress proceedings on 1 May 2020, seeking a declaration of
breaches of Article 5 of the Convention, and asked the Civil Court (in its constitutional competence)
to release him. In the meantime, on 19 May 2020, the criminal court authorised the continuation of
the proceedings. In a judgment of 29 May 2020, the Civil Court found a breach of the applicant’s
rights under Article 5 and ordered that the suspension be lifted. In that court’s opinion, it should not
have been left to the courts to determine whether considerations of public health prevailed over the
fundamental rights of accused persons, and whether the court environment was sufficiently safe and
if not, what measures should be taken to remedy the situation. It held that since the President of
Malta had not issued a proclamation under the Constitution, the public-health measures had been
brought in terms of the Public Health Act, and the legal notice could not prevail over fundamental
rights. Thus, the suspension of compilation of evidence proceedings for persons held in custody was
in breach of Article 5 of the Convention, and its equivalent in the Constitution.
The criminal proceedings against the applicant resumed on 1 June 2020.
Following an appeal by the State Advocate, the Constitutional Court overturned the Civil Court’s
judgment on 23 November 2020. It held that the applicant had not been detained indefinitely. The
courts had been granted discretion as to whether or not to continue proceedings and to decide on
bail requests. On that basis, the bail requests presented by the applicant when the courts were
closed had all been assessed individually and decided by judges. Furthermore, the criminal court had
lifted the suspension on 19 May 2020 and the applicant’s proceedings had been resumed with the
courts still closed. Moreover, the state of public-health emergency had been legitimately issued by
the Superintendent of Public Health. It was not for the Constitutional Court to say whether the
legislation represented the best solution for dealing with the problem or whether the legislature’s
discretion should have been exercised in another way. The measures had been put in place in
exceptional circumstances and had been in place for less than three months. They were thus
temporary and of a limited nature. Furthermore, the measures had been put in place on the basis of
the available scientific knowledge at the time and therefore they had not been arbitrary. They were
thus legitimate, necessary and proportionate, and the applicant’s detention could not be considered
arbitrary or indefinite, nor could it be said that he had had no remedy in respect of his detention.
The applicant complained under Articles 2 (right to life) and 3 (prohibition of inhuman and degrading
treatment) of the European Convention on Human Rights of his conditions of detention and the
State’s alleged failure to protect his health with regard to the Covid-19 pandemic and his vulnerable
status. He also complained, under Article 5 §§ 1, 3 and 4 (right to liberty and security) of the
Convention, of the lawfulness of his detention and the inadequacy of the domestic remedies used in
that connection. Lastly, relying on Article 6 § 1 (right to a fair trial) the applicant complained that he
had been deprived of his right to access to court and to trial within a reasonable timeframe.
THE DECISION OF THE COURT…
Articles 2 and 3
The applicant, in his submissions, described conditions of detention that he characterised as
contrary to the Convention, including periods of solitary confinement, insalubrious and cramped
conditions, lack of clean and warm clothing, and very limited physical exercise. He highlighted the
risk to his life due to the Covid-19 pandemic and his vulnerable status.
The Court considered that it could not, on the basis of the case file, determine the admissibility of
these complaints. It decided therefore to give notice of them to the Maltese Government.
Article 5 §§ 1 (c)and 3
The Court noted at the outset that it had not been contested that the applicant’s detention was
based on a “reasonable suspicion” that he had committed the offences with which he was charged.
The Court considered that the fact that the proceedings had been suspended with no appointed
date for resumption due to the emergency measures ordered in the light of the Covid-19 pandemic,
did not mean that the prosecution had had no intention of bringing the applicant before the
competent legal authority. Moreover, the Court observed that the suspension had not exceeded
three months. The applicant’s detention had its basis in the Criminal Code and not in the impugned
legal notices.
In addition, the Court noted that a decision on each of the four applications for bail lodged by the
applicant in his first four-and-a-half months of detention on suspicion of murder had been taken
rapidly by the domestic courts, two of the decisions even having been taken despite the courts’
closure. The courts had given detailed decisions substantiating the several grounds justifying the
continuation of the applicant’s detention.
As to whether the authorities had acted with due diligence, the Court noted that the applicant had
not referred to any failings, delays or omissions on behalf of the authorities, apart from the time the
proceedings had been suspended due to the emergency measures. That temporary suspension had
been due to the exceptional circumstances surrounding a global pandemic which, as held by the
Constitutional Court, justified such lawful measures in the interest of public health, as well as that of
the applicant. It followed that it could not be said that the duty of special diligence had not been
observed.
Accordingly, the Court held that this complaint was manifestly ill-founded and had to be rejected.
Article 5 § 4
The Court noted that the main argument behind the applicant’s application on 1 April 2020 had been
the introduction of the emergency measures which suspended the committal proceedings, a
situation which, in his view, had rendered his detention unlawful. In the domestic court’s view, his
request had been premature, or in any event ill-founded given the access he had had to the courts,
and it had decided that his detention could not be considered unlawful on that ground. The Court
did not find the domestic court’s decision to be arbitrary, nor that it had disregarded the applicant’s
argument or its factual basis.
Moreover, the criminal court had ascertained the lawfulness of his detention. The Court therefore
concluded that the decision of the criminal court had dealt sufficiently with the applicant’s
complaint, based on the arguments in his bail application and went even further covering issues of a
substantive and procedural nature not raised by the applicant.
The Court held that this complaint was manifestly ill-founded and had to be rejected.
Article 6 § 1
The Court noted that the proceedings had to date lasted sixteen months, a length of time which,
given the complexity of the case, could not be considered unreasonable. Furthermore, the applicant
had not referred to any failings, delays or omissions on behalf of the authorities, apart from when
the proceedings had been suspended due to the emergency measures. There was no indication that
the proceedings were not being actively pursued. Therefore, the authorities could not be
reproached for their conduct. The fact that no hearings had taken place during his committal
proceedings for a period of around three months – during which court work had been stalled due to
a worldwide pandemic – did not alter that conclusion. Nor could it be said that as a result of the
emergency measures, the essence of the applicant’s right of access to a court had been impaired.
Accordingly, the Court held that this complaint was manifestly ill-founded and had to be rejected.
The Court, unanimously, decided to adjourn the examination of the applicant’s complaints under
Articles 2 and 3 of the Convention and declared the remainder of the application inadmissible.
