Issue link: https://maltatoday.uberflip.com/i/1456293
NEWS 4 maltatoday | WEDNESDAY • 2 MARCH 2022 MATTHEW AGIUS 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 pre- serve 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, or- ganising or financing an organi- sation with a view to committing a criminal offence, and of com- plicity 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 Euro- pean court, Fenech claimed that ever since he had been remand- ed in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of de- tention. He also claimed that he was more susceptible to con- tracting COVID-19 due to the fact that he only had one kidney. In its decision, handed down in Strasbourg on Tuesday, the Eu- ropean Court of Human Rights (First Section), sitting as a Cham- ber composed of judges Péter Paczolay, President, Krzysztof Wojtyczek, Alena Poláčková, Gil- berto Felici, Raffaele Sabato, Lor- raine Schembri Orland, Ioannis Ktistakis, the court observed that Fenech had been placed in a sin- gle room upon admission at the order of the prison director. This decision had been made upon medical advice for security and protective reasons and be- cause Fenech had tested positive for drugs. "It transpired that he was posi- tive 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 life- style, made him a risk profile." Col. Alex Dalli, the prison di- rector at the time, had released an affidavit noting that CCF was 'Drug Free' and explained that it was the facility's policy for every- one 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 regu- lar testing, the applicant was no longer positive for cocaine. Having determined that Fenech was mentally stable, arrange- ments were made for his transfer to another division, the court was told. "The government also consid- ered that placement in a single room limited the risk of someone communicating with the appli- cant and attempting to hinder the important investigations being carried out at the time into the assassination. According to the Government, all decisions con- cerning 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 toi- let 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 al- leged 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 submit- ted that "the applicant had had sixty minutes of out-of-cell ac- tivity during which he had been expected to clean his cell, take a shower and make a phone call (other than to his legal coun- sel – 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 gov- ernment argued that the Fenech's submissions had been "littered with inaccuracies, contradic- tions, and outright fabrications." It pointed out that he had in fact once changed his submissions af- ter 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 sanc- tion 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 associa- tion". 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 protec- tive reasons said the judges. "However, if the applicant's risk factors were established for reasons other than his drug con- sumption, 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 preoccu- pied that such a situation could place particularly vulnerable in- mates at risk, and it emphasiz- es that such a measure requires regulation and rigorous adher- ence to medical protocols to safe- guard 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 psychiat- ric 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 possi- ble 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 psycho- logical effects in consequence of this regime." In August 2020, Fenech's cell had been furnished with a toast- er, kettle, TV, fire extinguisher, fridge and washing machine fol- lowing 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 com- plaints – the mere fact that de- tainees in the dormitory slept on bunk beds and shared a toilet, shower, and handbasin (between four to six people), does not con- stitute inhuman or degrading treatment, as is the case with washing clothes and dishes in the same basin. Moreover, in this re- spect 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 "regretta- bly" 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 pos- itive 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 contam- ination within the prison thus preserving the health and safety Yorgen Fenech rights breach claims dismissed by European Court Yorgen Fenech