European Court of Human Rights approach to emergency measures in criminal proceedings during the COVID-19 pandemic times
SHARE

European Court of Human Rights approach to emergency measures in criminal proceedings during the COVID-19 pandemic times

SHARE

Author:- João Victor Stuart
LLB Federal University of Rio de Janeiro, Brazil.
GHRD Intern (International Justice and Human Rights Team)

On 30th March 2021, the judges of the European Court of Human Rights (ECtHR) unanimously held that the complaints raised by Mr Fenech in the case of Fenech v. Malta regarding the 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 (ECHR) were ungrounded (European Court of Human Rights, 2021). Therefore, the court manifestly rejected these allegations. The man also alleged disruption of his right to life (Article 2) and to be free from inhumane or degrading treatment (Article 3), but the court postponed the judgment of these claims.

Yorgen Fenech is a Maltese businessman that runs one of the most powerful economic groups in the country, the Tumas group (Daphne Murder: 17 Black Owner Yorgen Fenech Arrested on Yacht, 2020). Mr. Fenech was arrested on 20 November 2019 after the Prime Minister of Malta, Mr. Joseph Muscat had indicated that he was involved in the killing of (Daphne Murder: 17 Black Owner Yorgen Fenech Arrested on Yacht, 2020). Daphne was an active and widely read journalist in Malta. On her blog, she used to target a strong criticism towards the ruling Labor Party, which has been governing the country since 2013. On 16 October 2017, she was killed by a powerful car bomb, minutes after leaving her home. Before that, she had received numerous threats for taking an investigation on corruption that linked the Malta’s prime minister's wife, a Panama shell company, and suspicious transactions from the Azerbaijani regime (Global Initiative Against Transnational Organized Crime, 2020). 


Dan Kitwood/Getty Images for the Daphne Project

Source: Ifex: https://ifex.org/one-year-after-suspects-arrested-still-no-justice-for-daphne-caruana-galizia/ 

After ten days of his arrest, Mr Fenech was charged for promoting, organising, or financing an organisation to commit a criminal offence, and of complicity in wilful homicide (European Court of Human Rights, 2021). On 16 March 2021, the Maltese criminal courts suspended their proceedings due to the implementation of emergency measures that resulted from the COVID-19 health crisis in Europe. Because of this interruption, Mr Fenech's defence lodged an application alleging that his imprisonment was unlawful and requested bail for him to wait for the return of the criminal proceedings out of prison (European Court of Human Rights, 2021).

His lawyers claimed that the undefined suspension of the criminal proceedings amounted to significant uncertainty regarding when Mr Fenech's trial would happen. Therefore, the lack of a specific date of return of the proceedings breached article 6 of the European Convention of Human Rights, that guarantees that all the stages of the legal proceeding conducted by the court must be reasonable in time (Council of Europe, 2020). In that sense, according to Mr Fenech's defence, maintaining him in prison without a legal basis would be unlawful, as the Maltese court did not know when it would reopen its doors. The criminal court dismissed this request. 

In sequence, on 16 April 2020, Mr Fenech's defence again requested bail for him to wait the return of the proceedings in liberty. They also raised the issue of his vulnerability as a prisoner in the middle of the escalating numbers of infected people in Europe. At this time, he added the suspension of court’s proceedings combined with the risks of contracting Covid-19 whilst incarcerated violated his right to life and freedom from ill-treatment (European Court of Human Rights, 2021). The defence stressed that, as Mr. Fenech had previously lost one kidney, if he contracted COVID-19, his health condition could worsen significantly, which could amount to his death in prison. The Maltese criminal court rejected the request for bail again but ordered that Mr. Fenech received special attention due to his health fragility (European Court of Human Rights, 2021). 


On 6 May 2020, Mr Fenech's lawyers applied to the European Court of Human rights. The applicant alleged that his right to life (European Convention on Human Rights, n.d.) and his right not to suffer inhumane and degrading treatment (European Convention on Human Rights, n.d.) had been disrespected because the State of Malta failed in protecting him by forcing him to continue in prison even during the pandemic despite his deficient health condition (Malta independent, 2021). Mr. Fenech's complaints also raised violations of article 5 §§ 1, 3, and 4 (right to liberty and security) because of the unlawfulness of his detention and the inadequacy of the domestic remedies in the case. He also raised violations against article 6 § 1 (the right to a fair trial) as the Maltese court did not offer efficient, foreseeable and timely access to court and trial (Human Rights Court Declares Application by Yorgen Fenech Partly Inadmissible The Malta Independent, 2021). The Court only analysed the first complaints about articles 5 §§ 1, 3, and 4 and 6 § 1 of the ECHR. 

Regarding Mr Fenech's allegations that the interruption of the Maltese criminal court's activities amounted to unforeseeable and lengthy access to trial by him, the Court explained that the unpredictability that came with the COVID-19 situation forced the Maltese judicial system to halt its activities without knowing exactly when it could return to its normal routine (European Court of Human Rights, 2021). The Court in its latest jurisprudence does not admit any exception to the rule that assures that a person is brought promptly before a judge or other judicial officer after his or her arrest or detention. However, the Court does admit that there are cases in which special difficulties or exceptional circumstances prevent the authorities from following this rule, which is the case of the pandemic (Council of Europe, 2020). The suspension only lasted for three months, which, according to the European Court, did not represent an abusive or excessive amount of time given the current exceptional circumstance of the time of the arrest. Moreover, the Court also noted that the fact that the Maltese criminal court opted to stop working for some months did not mean that the judges did not have the intention to bring Mr. Fenech before the competent legal authority (European Court of Human Rights, 2021). 

When it comes to the bail requests made by the applicant, after examining the response of the Maltese Criminal Court, the judges of the European Court noted that the Maltese judges answered them quickly and efficiently, although some of them had been lodged during the period of the Court's closure. Regarding the Court's reasons for not granting Mr Fenech a bail to wait for the trial out of prison, the judges of the European Court of Human Rights considered that national judges deployed thorough and substantial reasonings to deny the applicant's release from prison (European Court of Human Rights, 2021). 

Lastly, the judges affirmed that any allegations of breach of the due diligence by the Maltese court could not be admitted by the European judges because the short suspension was due to an unpredictable situation. Accordingly, the Court held that this complaint was ill-founded and had to be rejected (European Court of Human Rights, 2021). 

Regarding the allegation of Mr. Fenech about the unlawfulness of his arrest, the Court held that his claim was based exclusively on the issue of the emergency measures. According to Mr. Fenech's defence, their client's arrest was illegal due to the health-related suspension of the proceedings. However, the European Court agreed with the Maltese criminal court that Mr. Fenech had access to the proceedings on a formal and timely basis until the suspensions, as the article 5, paragraph 4 of the European Convention of Human Rights provides (European Court of Human Rights, 2021). Regarding that, the jurisprudence of Court indicates that the term “speediness” must be interpreted in the light of the circumstances of the individual case (Council of Europe, 2020). In contexts of emergencies, the European Court has already admitted cases in which the “speediness” of the legal proceedings meant a period of eight months and twenty-three days. Still, this period of time was considered in accordance with the legal requirements In that sense, the suspension established by the Maltese criminal court did not last more than 3 months, which did not negate the "speediness" condition of the article. The Court, therefore, concluded that the decision of the criminal court had dealt sufficiently with the applicant’s complaint, and rejected his claims. 

The judges observed that Mr Fenech had not claimed any failings, delays, or omissions of the authorities, apart from their decision to suspend the proceedings. They were convinced that there was no evidence that the domestic judges were not actively pursuing the proceedings. Thus, there were no reasons to hold the Maltese authorities responsible. Although article 6 § 1 requires that every arrested person has the right to have a public hearing, the absence of hearings and the delay in taking Mr Fenech to trial did not change the judges' statement on the case, as they resulted from the emergency measures. Accordingly, the Court held the third allegation of the applicant manifestly ill-founded and rejected it (European Court of Human Rights, 2021). 

The European Court of Human Rights (ECtHR)

The European Court of Human Rights is a regional judicial organ based in Strasbourg, France. It was created by the Council of Europe and began its functions in 1959. So far, the Court has delivered over 10.000 decisions on cases involving violations of the terms of the European Convention on Human Rights. The Court has jurisdiction to decide complaints submitted by individuals and States concerning violations of the European Convention on Human Rights by one or more of its State Parties. Although the person, group, or organization who makes the complaint before the Court does not need to be a citizen of one the States Parties, the violation must have happened in one of these States. The Court has jurisdiction in 47 States, including non-EU and EU member States. The Court also has advisory jurisdiction, therefore, respecting certain requirementsit can issue advisory opinions on questions of interpretation of the European Convention and its protocols (European Court of Human Rights, 2020). 


european court of human rights


BIBLIOGRAPHY

Council of Europe. (2020, December 31). Guide on Article 5 of the European Convention on Human Rights. https://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf

Council of Europe. (2020, December 31). Guide on Article 6 of the European Convention on Human Rights. https://www.echr.coe.int/documents/guide_Art_6_eng.pdf

Daphne murder: 17 Black owner Yorgen Fenech arrested on yacht. (2020, April 10). Times of Malta. https://timesofmalta.com/articles/view/17-black-owners-boat-intercepted-at-sea-by-afm.751177

European Convention on Human Rights. (n.d.). Council of Europe. Retrieved April 14, 2021, from https://www.echr.coe.int/documents/convention_eng.pdf

European Court of Human Rights. (2021, March 23). Complaints brought by suspect in Caruana Galizia assassination declared partly inadmissible. https://hudoc.echr.coe.int/eng#{"itemid":["001-209142"]}

European Court of Human Rights. (2020, July 17). International Justice Resource Center. https://ijrcenter.org/european-court-of-human-rights/

Global Initiative Against Transnational Organized Crime. (2020, October 2). Daphne Caruana Galizia. Faces of Assassination. https://assassination.globalinitiative.net/face/daphne-caruana-galizia/

Human Rights court declares application by Yorgen Fenech partly inadmissible - The Malta Independent. (2021, March 30). Malta Independent. https://www.independent.com.mt/articles/2021-03-30/local-news/Human-Rights-court-declares-application-by-Yorgen-Fenech-partly-inadmissible-6736232188

28-04-2021
15:05 PM

Here You Can Download The Report.

28-04-2021 15:05 PM

Tags

Here You Can Download The Report.

Help us in this fight? / Take Action / How can you help?

Sign a Petition

How can you help?

Pakistan on a daily basis, innocent people get accused of blasphemy. Often are this fake blasphemy accusations to settle personal enmity. However the consequences are real and serious of such an accusation. In Pakistan being charged with blasphemy means the death penalty or life imprisonment. Innocent families are getting separated for a life time. By signing this petition, together we can make a beginning to an end of such practices.

Sign a Petition

How can you help?

Global Human Rights Defence urges everyone being discontent and outraged by China's mistreatment of minorities to boycott the games. Ironically, the latter will be in total contrariety with the values it promotes in its Charter such as friendship, solidarity, and human dignity. Passionate about sport or mere citizen of the world, please stand against human rights violations by signing this petition. Make sure China stops playing with minorities' rights!

Gambian domestic legislation leaves women vulnerable to violence in Gambia.

Mr. Madi Jobarteh, a renowned Gambian rights activist spoke in a recent interview with The Point Gambia, expressing his concerns over the domestic law

1 00:00 AM

Six new judges of the International Criminal Court were sworn at the Court’s headquarter in the Hague.

Six new judges of the International Criminal Court were sorned at the Court’s headquarter in the Hague. On 10 March 2021, the six new judges electe

1 00:00 AM

International Criminal Court rules that it has jurisdiction over Palestinian territory and Prosecutor announces the opening of an investigation

On 5 February 2021, the International Criminal Court (ICC) issued one of the most anticipated rulings in the Court’s history. More than a year after

1 00:00 AM

Nazanin Zaghari- Ratcliffe in Tehran Court

British-Iranian aid worker Nazanin Zaghari-Ratcliffe appears before a Teheran court related to a new charge of “propaganda against the establishment

1 00:00 AM

The Kingdom of the Netherlands and Canada issued a joint statement affirming their willingness to take actions towards accountability for gross human rights violations committed by Syria.

The two States released a joint statement affirming that they will work on joint actions to hold the Assad regime accountable for the human rights vio

1 00:00 AM

Lebanon in Crises

Leban

1 00:00 AM

Belarus Human Rights situation deteriorating further, warns UN rights Chief.

A “systematic crackdown” against dissent in Belarus is continuing, months since the country’s disputed presidential electio

1 00:00 AM

18 Houthi fighters killed in Taiz

Over 18 Houthi fighters were killed in Maqbanah District of Yemen’s Taiz, pushin

1 00:00 AM

Labour exploitation in Northern Europe

In recent years, close attention has been paid to cases of migrant exploitation in Southern European states

1 00:00 AM

US official document for Palestinian ‘reset’

UAE-based newspaper The National obtained

1 00:00 AM

Verify Your Email Address First

0 Comments

You are the first.

Recommendations
Eritrean Community based Sanitation Programs

18-03-2021 16:01 PM

Nigeria faces acute hunger insecurity

18-03-2021 16:01 PM

The Inter-American Commission of Human Rights and its Special Rapporteurship express their concerns about the situation human rights violations against peaceful protesters in Colombia.

18-03-2021 16:01 PM

Residents of Mzuzu, capital of Malawi’s northern region demonstrates against the delay of Luwinga Road’s construction

18-03-2021 16:01 PM

More than 1,000 migrants arrive on Italian island of Lampedusa

18-03-2021 16:01 PM

Dozens more Palestinians wounded as Israeli forces continue to raid Al-Aqsa compound

18-03-2021 16:01 PM

Bomb kills at least thirty near girls' school in Afghan Capital

18-03-2021 16:01 PM

Mother's Day for Uyghurs

18-03-2021 16:01 PM

Islamic Republic of Pakistan has unleashed its death squads on people

18-03-2021 16:01 PM

Death of refugee at Greek camp highlights inhumane conditions on islands despite EU allocating millions of euros to improve facilities

18-03-2021 16:01 PM

None of European countries support the UK government’s asylum plans

18-03-2021 16:01 PM

Pastors banned from "any religious activity" by the minister of territorial administration

18-03-2021 16:01 PM

Asian Community in Malawi in fear of attacks

18-03-2021 16:01 PM

Celebrating Mother’s Day Without Their Children: Families Separated in Chinese Camps

18-03-2021 16:01 PM

Extreme Human Rights Violations Against Uyghurs in Xinjiang Occupied by China

18-03-2021 16:01 PM

The UN high commissioner for Human Rights demonstrates its deepest concerns about the bloodiest civilian killing committed by police agents in Brazilian history on 6th May.

18-03-2021 16:01 PM

Project to change the lives of women in rural Zimbabwe

18-03-2021 16:01 PM

Violence against women during the protest in Cali, Colombia

18-03-2021 16:01 PM

Farmers are fined for spraying pesticides that hit a child in the State of Maranhão, Brazil

18-03-2021 16:01 PM

Malaysia: Urgent need for police reform

18-03-2021 16:01 PM