Information Note on the Court’s case-law 249

March 2021

Fenech v. Malta (dec.) - 19090/20

Decision 23.3.2021

Article 5

Article 5-1

Lawful arrest or detention

Lawful suspension of criminal proceedings for unspecified time during Covid-19 crisis and continued detention lasting three months: inadmissible

Facts – The applicant was arrested and detained on remand, on suspicion of involvement in murder. Due to the sp read of the coronavirus (Covid-19), national measures were introduced which led to the suspension of the criminal proceedings, and which were to remain in force until lifted on order of the competent authority. Domestic courts retained discretion to hear u rgent cases or related matters. The proceedings resumed three months later.

The applicant made several unsuccessful applications for bail. During the Covid-19 crisis, he also made an unsuccessful habeas corpus petition, alleging unlawful detention due to the decision to suspend all criminal proceedings for an unspecified time.

Law – Articles 5 § 1 (c)  and 5 § 3:

The Court first had to determine whether the purpose of the applicant’s continued detention had been to bring the applicant before a “competent legal authority”.  Despite the different context, the principles in previous cases ( Brogan and Others v. the United Kingdom ; Petkov and Profirov v. Bulgaria ) remained relevant. The mere fact that due to the emergency measures, enacted in the light of the Covid-19 pandemic, the committal proceedings had been suspended sine die , and could not be continued unless authorised, did not mean that the prosecution had had no intention of bringing the applicant before the competent legal authority. The Court believe d that, had it been possible and without risk to the different persons involved, including the applicant, the committal proceedings would have continued, as they in fact had resumed in June 2020. Moreover, the suspension had not exceeded three months. It f ollowed that it could not be said that the applicant’s detention in that period, during which the emergency measures had been in place, had not been for the purposes of bringing him before the competent legal authority.

In so far as the applicant had reli ed on Article 5 § 3, he had not articulated any specific complaint which went beyond the issuance of the emergency measures. Between the date of his arraignment/detention on remand and the last decision on his bail request, that is to say a period of less than five months, the applicant had lodged four bail applications. Those had been decided speedily by the domestic courts in all circumstances and two had been decided by the Criminal Court despite the closure of the courts, because the court had deemed it necessary and had applied its discretion granted to it under domestic law.

Each of those decisions had been based on relevant and sufficient reasons to justify holding the applicant in custody for the entire period of time: the applicant’s detention had continued to be for the purpose of being brought before the competent authori ty; the domestic courts had given detailed decisions on the basis of the Court’s case-law and the evidence available to them, substantiating the several grounds justifying the continuation of that detention; and it had been further considered that no other alternatives to the detention could have achieved the aim pursued. Furthermore, the domestic courts had given details of the grounds of the decisions in view of the developing situation and had stated whether and why the original grounds had remained vali d despite the passage of time, despite the particularly brief intervals between the bail applications.

In relation to the denial of the applicant’s last request for bail, the Criminal Court had considered the stage reached in the proceedings – involving f urther witness testimony to be heard and potential procedural pleadings – which, in its view, had heightened the risk of witnesses being influenced and obstructing the course of justice. A temporary suspension of hearings did not affect the validity of tha t ground for detention, as there had been no doubt that once the suspension had been lifted, the proceedings would resume. Once the proceedings resumed, the Attorney General could again ask for the hearing of witnesses, and if that had not been the case, t he applicant having been committed for trial, witnesses would once again be heard at trial. Reliance on that ground amongst others had therefore also been justified, it being a relevant consideration for the bail assessment.

As to whether the authorities had acted with due diligence, the proceedings had been suspended for a little less than three months. There was no indication that they had not been actively pursued before the emergency measures had been put in place or afterwards. Moreover, the temporary suspension had been due to the exceptional circumstances surrounding a global pandemic which, as held by the Constitutional Court, had justified such lawful measures in the interest of public health, as well as that of the applicant. It therefore could no t be said in the circumstances of the present case that the duty of special diligence had not been observed.

Conclusion : inadmissible (manifestly ill-founded).

Article 5 § 4:

The applicant claimed that the Criminal Court, in its decree rejecting his habeas corpus application, had refused to consider the lawfulness of his detention. The applicant’s main argument had been that the introduction of the emergency measures which suspended the committal proceedings had rendered his detention unlawful. The do mestic court had disagreed, considering in particular that the proceedings could still continue had the applicant so requested. The court had also noted that the proceedings had continued in respect of his requests for bail and the habeas corpus applicatio n it was deciding. Therefore, his request had been premature in that respect, or in any event ill-founded given the access he had had to the courts. Therefore his detention could not be considered unlawful on that ground.

Moreover, despite the limited for mulation of the applicant’s complaint, the Criminal Court had proceeded to ascertain the lawfulness of his detention and had referred to the requirement that the duration of detention should not be excessive. The decision of the Criminal Court had thus dea lt sufficiently with the applicant’s complaint based on the arguments in his bail application and had even gone further, covering issues of a substantive and procedural nature not raised by the applicant.

Conclusion: inadmissible (manifestly ill-founded).

The Court also rejected as inadmissible (manifestly ill-founded) the applicant’s complaint under Article 6 that the emergency measures had deprived him of his right of access to court to challenge the prosecution case and to trial within a reasonable time . It adjourned the examination of the applicant’s complaints as to the conditions of detention and the risk to his life due to the pandemic and his vulnerable status under Articles 2 and 3.

(See also Brogan and Others v. the United Kingdom , 11209/84 et al. , 29 November 1988; Petkov and Profirov v. Bulgaria , nos. 50027/08 and 50781/09 , 24 June 2014)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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