Court refutes Yorgen Fenech’s claim that his arrest and detention is illegal

A judge threw out a request filed by suspected mastermind Yorgen Fenech who claimed the time spent behind bars was illegal because it had become unclear when the courts would be able to reopen due to coronavirus.

Fenech filed a writ of habeas corpus, a request filed by a prisoner asking the court to declare that his detention was illegal, after his compilation of evidence had been put on hold indefinitely after the authorities shut down the law courts to prevent the spread of coronavirus.

He is accused of being the mastermind behind the murder of journalist Daphne Caruana Galizia in October 2017.

In his request, Fenech pointed out that all court procedures were put on hold after a legal notice published on Wednesday, retroactive to 7 March, declared a state of a public health emergency.

This meant that his case files were not sent back to the Attorney General within the six-week time window and the scheduled sitting of 27 March could not take place.

In his writ, Fenech pointed out that he had already filed several requests for bail and that all of these had been refused.

In her judgment, Judge Edwina Grima said she agreed with the argument made by the Attorney General that Fenech’s arrest and detention were legal and that his request should be refused.

She pointed out that Fenech was incorrect in saying he was under “indefinite” arrest because he always had legal remedies available and could always turn to the court to request bail. The time spent under preventative custody did not make the arrest illegal unless declared by a court of law.

He had been charged with a serious crime and arraigned within 48 hours of his arrest. His case was being heard and evidence was being presented in court. “The court always followed the procedure according to the law and in line with all the legal and judicial terms up until the legal notice was issued.”

There was always a reason behind the refusal of his bail requests, which were always heard by the court. Now that court has been suspended, he could still turn to the courts.

Judge Grima pointed out that Fenech needed to request bail with all the conditions and guarantees imposed by the court instead of an “unconditional” request for bail.

“He can’t decide a priori that the courts will refuse his bail because his position remained unchanged from the last request,” because the compilation of evidence had been put on hold. Also, Fenech could not assume that the courts were going to refuse his request for the continuation of the compilation of evidence.

The authorities should find a way, in these exceptional times, to implement laws that allow criminal cases to continue – especially when an accused is under preventive arrest – using audio-visual methods to curb the spread of the disease, she said.