CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mars 2021

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page-break-after:avoid; padding-left:0.18pt; font-family:Arial; text-transform:uppercase } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s21B1FE17 { width:12.67pt; display:inline-block } .sC9FF2A52 { width:145.85pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s9C6A147F { width:184.21pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FIRST SECTION DECISION Application no. 19090/20 Yorgen FENECH against Malta   The European Court of Human Rights (First Section), sitting on 23   March 2021 as a Chamber composed of:   Ksenija Turković, President,   Krzysztof Wojtyczek,   Alena Poláčková,   Péter Paczolay,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to the above application lodged on 6 May 2020, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Yorgen Fenech, is a Maltese national, who was born in 1981 and lives in St Julian’s. He is represented before the Court by Mr W. Jordash, a lawyer practising in Den Haag, the Netherlands. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. Background to the case 2.     The applicant is a businessman and the former head of the Tumas   Group. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne   Caruana Galizia in October 2017. On the same day he was released on bail. 3 .     On 30 November 2019, the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the Corradino Correctional Facility, Paola, Malta. Bail applications made prior to the spread of the Covid-19 pandemic First bail application 4.     On 18 December 2019 the applicant made his first bail application before the Court of Magistrates. 5.     At a hearing of 23 December 2019, after examining the request and hearing the parties, as well as the witnesses, and examining the material evidence produced, the court rejected the application as it was not satisfied that the risks listed in Article 575 of the Criminal Code, Chapter   9 of the Laws of Malta (see paragraph 58 below) did not exist. 6.     In particular, it referred to the risk of manipulation of evidence and interference with the course of justice at a point in time when police investigations relating to the murder were highly active. It considered that granting the accused bail at that stage would have the effect of disturbing public order in the sense of the Court’s decision in the case of Letellier v.   France (26 June 1991, Series A no. 207) and other more recent case-law. 7.     On the same day it considered that for the purposes of Article   401   (2) of the Criminal Code there existed sufficient grounds for committing the accused for trial. It sent the case file to the Attorney General and adjourned the hearing to 30 January 2020. Second bail application 8.     On 30 January 2020, the applicant made his second bail application, which was rejected by the Court of Magistrates on 20 February 2020 after hearing the parties and relevant witnesses. 9 .     The Court of Magistrates noted that while the existence of reasonable suspicion was a sine qua non for the validity of the continued detention, under domestic law when dealing with a crime punishable by life ‑ imprisonment according to Article 575 (1) of the Criminal Code, bail was to be denied if at least one of the dangers enlisted therein existed. It considered that since the rejection of his application a few weeks earlier, there had been no new elements which could justify a different conclusion. To the contrary, from the testimonies and evidence produced, it transpired even more clearly than before that there were third parties who might have been involved in the murder, as well as other persons who might also have had a role in the murder, or whose testimony was relevant, who had not yet been summoned to give evidence. Thus, there still existed a real danger of manipulation of the course of justice, which could not be minimised by granting bail subject to conditions. That danger had in fact assumed more significant proportions and was sufficient to justify a denial of bail. Nevertheless, on top of that, the release of the applicant at that stage concerning such a sensitive matter could give rise to elements of social disturbance and public disorder (see Kubicz v.   Poland , no. 16535/02, 28   March 2006) particularly against the backdrop of the instability and disorder which had evidently taken a grip of Maltese society at the time of the murder and on the applicant’s arrest. 10.     On the same day the committal proceedings were adjourned to the 27   March 2020 and the case file was sent to the Attorney General who had a six-week window to return the file. Legal measures introduced during the Covid-19 crisis in Malta 11.     Due to the spread of the coronavirus, on 13 March 2020, the Superintendent of Public Health declared, by virtue of Legal Notice (‘L.N.’) 115 of 2020, in accordance with Article 14 of the Public Health Act and with effect retrospectively from 7 March 2020, that a public health emergency existed in Malta. 12.     On 13 March 2020 the Maltese Department of Information published L.N. 65 of 2020, namely “Closure of the Courts of Justice Order, 2020” (further amended on 23 March 2020 by way of L.N. 97 of 2020), as well as L.N. 61 of 2020, namely “Epidemics and Infectious Disease (Suspension of Legal and Judicial Times) Order, 2020” (further amended on 18   March 2020 by way of L.N. 84 of 2020, and again on 10   April 2020 by way of L.N. 141 of 2020) (“Emergency Measures”). 13.     Cumulatively, the Emergency Measures closed the courts of justice and the court registry with effect from 16 March 2020 and suspended the running of any legal or judicial times as well as any time period under any substantive or procedural law - such orders remaining in force until seven days following the lifting of the said orders of the Superintendent. 14.     Regulation 3 of L.N. 61 of 2020 provided for “the power of any court to order the opening of its registry, the hearing of any case and anything consequential and incidental thereto in urgent cases or in cases where it deemed that the public interest in having the case heard should prevail, subject to any specific arrangements for the guarding against and, or controlling dangerous epidemics or infectious disease as the court may determine.” Applications made during the Covid-19 crisis Habeas corpus petition 15.     On 1 April 2020 the applicant’s lawyers filed a habeas corpus application (an application by a person in custody pending criminal proceedings alleging unlawful detention under Article 412B of the Criminal Code – see paragraph 58 below) before the Criminal Court. 16 .     The applicant argued that in light of Article 34 (3) of the Constitution of Malta, which is reflected in Article 5 § 3 of the European Convention on Human Rights, the decision to suspend all criminal proceedings until an unspecified date amounted to a sine die suspension, which meant that the applicant could not be tried within a reasonable time while he was detained. This, in his view, rendered his detention unlawful and therefore he considered that he should be granted bail. He also argued that in the absence of any certainty, specificity or foreseeability concerning when the courts might reopen, his continued detention lacked any legal basis, making his detention unlawful. Moreover, he noted that the cessation of proceedings was depriving him of his right to contest the legality of his detention, which again, in his view meant that the detention was unlawful. 17 .     On 2 April 2020 his petition was rejected. The Criminal Court noted firstly that since the suspensory measures had been put in place - that is the   period since when the applicant claimed to have been detained unlawfully - no hearing had taken place in the applicant’s case which was pending before the court of inquiry – this he had claimed made his detention unlawful. However, as argued by the Attorney General, the applicant had not made a request to have his proceedings continued, a safeguard provided for under Regulation 3 (2) of L.N. 61 of 2020 which stipulated that the courts had the power to hear urgent cases or cases where they deemed that the public interest in having the case heard should prevail. Nor had he requested bail during such period. It was indeed necessary for the courts to provide legal remedies for individuals, and the law provided for such remedies, so much so that the court was also determining the applicant’s present application within twenty-four hours of it having been lodged. It was therefore wrong to claim that his detention was unlawful, given that he had access to such remedies. 18 .     Further, it could not be ignored that the applicant was charged with serious criminal offences, he was arrested and arraigned before the court within forty-eight hours of his arrest – that court validated his arrest. His case was being heard according to law, and the compilation of evidence was proceeding before the court of inquiry in accordance with the law and in line with all the judicial and legal timeframes, until the suspension came to be. His bail requests were also heard and rejected given that the applicant’s detention was necessary in the circumstances - the requirements of Article   575 of the Criminal Code (see paragraph   58 below) not having been satisfied. 19.     Thus, in the court’s view the applicant’s request was premature, but also unfounded considering that his detention was lawful and therefore that there was no room for an unconditional request for bail [release]. He could however request bail [conditional temporary release] under Article   574 et   sequitur of the Criminal Code (see paragraph 58 below). The applicant could not decide, a priori , of his own accord that his requests would be refused. 20 .     It was for the national authorities to consider, in a given case, that the duration of the detention on remand does not exceed a reasonable time. According to the Criminal Court although Malta had not submitted a derogation to this effect under Article 15 of the ECHR, the right to liberty was not an absolute right in a state of emergency such as the Covid-19 pandemic which was an international emergency. In its view, the applicant’s arrest could not be considered neither unlawful nor arbitrary, even more so given the remedies open to him. Third bail application 21 .     On 6 April 2020 the applicant filed a bail application before the Criminal Court arguing , inter alia , that: (i) the suspension of the court proceedings sine die , amounted to a change in circumstances justifying bail; and that (ii) there were no relevant grounds pursuant to Article   575 of the Criminal Code to deny bail. He noted in particular that the travel ban imposed via the emergency measures made it inconceivable to abscond, and that had there been fear of manipulating witnesses, the prosecution should have presented them earlier. 22 .     On 7 April 2020 the Criminal Court denied bail. It noted that the applicant was charged with the serious crime of voluntary homicide and he had only been arraigned four months prior, during which time proceedings were being heard in an expeditious manner. 23.     It noted that the applicant had lodged two bail requests within such time, both of which had been rejected. Thereafter the suspension of court work was decreed at a time when the case file was in the hands of the Attorney General (Article 405 of the Criminal Code, see paragraph   58 below) who could not send it back to the court of inquiry in view of the suspension, thus impeding the continuation of the proceedings. Nevertheless, there had been no change in circumstances since his last bail request eight weeks earlier, and all the dangers indicated then had not disappeared because of a global pandemic which necessitated the closure of the courts of justice. 24.     Moreover, the applicant could ask the courts, under Regulation   3   (2) of L.N. 61 of 2020 to resume his proceedings, while taking all the necessary precautions and measures to ensure the health of all those present at such hearing. 25 .     Referring to the Court’s case-law it noted that in the present case there was no doubt that the facts of the case were much wider than those reflected in the procedural acts. The in genere inquiry [an inquiry conducted by a Magistrate for the purposes of listing and preserving the material traces of an offence] into the murder of Daphne Caruana Galizia was still ongoing and there were still strong suspicions that some of the wrongdoers involved   in the crime had not yet been intercepted. Thus, in view of the wide-reaching active investigation there was a risk that the granting of bail would pose a threat to the administration of justice. Further, the Criminal Court reiterated that in cases concerning organised criminal activity or gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or co-suspects, or otherwise obstruct proceedings, was often high. Indeed, the applicant himself had admitted that he had been approached to carry out acts of obstruction. According to the Criminal Court, the vast and serious facts surrounding the case were causing fear of public disorder, and quite apart from the particular subject matter of the case and the seriousness of the charges, the proceedings were still at an early stage with a number of witnesses who had yet to testify. Thus, the applicant’s detention at this stage remained justified. Application pursuant to Regulation 3 of L.N. 61 of 2020 26 .     On 8 April 2020, the applicant filed an application before the Criminal Court pursuant to Regulation 3 (2) of L.N. 61 of 2020, asking the Criminal Court to order the Attorney General to send the case file to the Court of Magistrates as a court of criminal inquiry for resumption of the compilation of evidence proceedings and the hearing of evidence. 27.     On the same day the Criminal Court rejected his request. It noted that the three legal notices suspending court work as of 7 March 2020 until seven days after its eventual revocation, had been issued in the interest of public health, due to the exceptional state of affairs related to the pandemic. Nevertheless, the courts continued to hold regular sessions where there were reasons of urgency and public interest (as evidenced by this decree, and two other decisions given in reply to the applicant’s applications during such time – see paragraphs 17 and 22 above). 28.     It considered that, while all criminal proceedings were of importance, in view of the public health emergency situation other considerations had to be weighed in. One of the main reasons for the closure of the courts was to prevent large numbers of people gathering in closed places contributing massively to the spread of Covid-19. The Criminal Court thus considered that the applicant’s case could not benefit of the exception provided in Regulation 3 (2) of L.N. 61 of 2020 given that the proceedings were still at inquiry stage, namely, the compilation of evidence proceedings in front of the Court of Magistrates as a court of criminal inquiry. This stage was regulated by strict procedural laws that mandated the presence of the parties in a building and physical space and that required the presence in the court room of a substantial amount of people in a confined space and for a considerable amount of time. It would see large numbers of the public, who had a right to be present in the hearings and would further require commuting for each person in order for such proceedings to take place. This was even more so in the applicant’s case where proceedings had been followed by a large number of people. Although some witnesses could be heard by video conferencing, the current criminal procedure did not exempt the physical presence of the accused and court officials including the defence lawyers, the public prosecutors and lawyers from the Attorney General’s office, the civil party and their lawyers, other police officers, as well as court personnel including marshals, messengers, the deputy registrar as well as the judge or magistrate. This was besides the inevitable element of movement and commuting again involved for each person. Moreover, there was insufficient digital infrastructure and logistics allowing the proceedings to be heard electronically. Thus, bearing in mind, on the one hand, the element of urgency and public interest in the applicant’s case, and, on the other hand, the risk of contagion should the proceedings be resumed, the Criminal Court considered that the prevailing consideration was that of the public health of all those involved directly or indirectly in these criminal proceedings including the applicant himself. Fourth bail application 29 .     On 16 April 2020 the applicant made another application for bail before the Criminal Court, again raising the issue of the sine die suspension of court proceedings, which he considered, combined with the risks of contracting Covid-19 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 at a significant danger to his health and survival if he contracted Covid-19. An expert medical note was relied upon according to which the applicant was at a higher risk than a normal person to develop severe complications from the Covid-19 infection (see paragraph 40 below). The applicant also referred to the fact that the prison being under lockdown since 8 April 2020 he was being denied family visits and his meeting with his lawyers had been subject to formalities. The applicant submitted that he was willing to produce a sufficient surety in terms of Article 577 (1) of the Criminal Code, and that there existed none of the dangers enlisted in Article 575 of the Criminal Code. Inter alia , in reply to the Attorney General’s pleadings, he insisted that when he had been arrested on his yacht, he had not intended to abscond but only to leave Malta to effect planned repairs to his boat. 30 .     On 21 April 2020, the applicant’s request for bail was rejected. The Criminal Court considered:- the serious crime with which the applicant was charged; the evidence collected to date which shed light on the alleged involvement of the applicant in the crimes with which he was charged; the time during which he was detained, that is as of 30   November 2019; the complex nature of the investigations (including an in genere inquiry which was still ongoing, as well as other investigations by the Police, multiple involved persons including the physical perpetrators whose trials where ongoing, and foreign assistance in investigations requiring the collaboration of the police, the judicial authorities and various experts) which required more time and exceptional resources when compared to other cases; the stage of proceedings which involved further witness testimony to be heard and potential procedural pleadings heightening what it considered as a real risk of witnesses being influenced and the applicant obstructing the course of justice. It also considered the accused’s previous conduct, namely his clean record; his community ties and the risk of absconding (largely debated in his previous application) – in particular in view of the maximum penalty the applicant could incur and the limited places of hiding available on a small island like Malta; as well as the fact that if he absconded proceedings would be stopped, since under Maltese law proceedings could not continue in absentia . This was also in the light of his sound financial means and various contacts with foreign jurisdictions, including outside of the European Union. 31.     Moreover, other circumstances gave specific indications of a genuine requirement of public interest which outweighed the rule of respect for individual liberty. In particular, the homicide with which he was charged had a bigger impact than other homicides as it concerned a journalist who had been killed by means of a car bomb; in connection with her work, her published writings and inquiries; and it occurred at a very specific time and within a historical and socio-political context. The murder had an impact at an international level drawing the attention of media worldwide and reactions by organisations including the Council of Europe. 32.     The Criminal Court highlighted the importance of the stage of proceedings which under domestic law gave a large number of rights to the accused during the inquiry stage and which required time and special diligence. Unfortunately, this case had been struck by the unnecessary complications linked to the Covid-19 pandemic. However, this had led to the limitation of the freedoms of all person in Malta, including businesses and workplaces, as well as restricting visits to institutions and hospitals. All these restrictions had been justified for public health reasons, as was the decision to close the courts, which, moreover, was only a temporary measure. Nevertheless, the Criminal Court called for logistical and legal arrangements so that the courts of justice be able to operate in virtual mode and at least part of the applicant’s complaints would be resolved. 33 .     The Criminal Court considered, however, that bail could not be granted as any changes to the circumstances were minimal. The applicant had mainly reiterated his claims despite a decision being given only two weeks earlier. Moreover, the Criminal Court was not convinced that if bail were to be granted, the applicant would be able to provide sufficient guarantees that he would appear for trial, or that he would not abscond or that he would respect all conditions imposed on him, or that he would not commit other crimes, or manipulate witnesses and obstruct the courts of justice. Given his medical situation the Criminal Court nonetheless ordered the director of prisons to pay particular attention to the applicant’s medical needs in this time of pandemic. The continuation of the criminal proceedings 34 .     By a decision of 19 May 2020 (before the decision of the constitutional jurisdiction – see paragraphs 42 and 47 below), upon the request of the Attorney General, the Criminal Court authorised the latter to return back the records of the inquiry, which where thus returned on (or before) 25 May 2020 for the continuation of the proceedings. The proceedings resumed on 1 June 2020 (while the courts were still closed according to the emergency measures). 35.     According to a list published by the Registrar of Courts on 11   May 2020, seventeen hearings had taken place till then, in committal proceedings other than those of the applicant, during the closure of the courts. Conditions of detention at the Corradino Correctional Facility 36.     The applicant claimed that ever since he had been remanded in custody, he endured a mixture of abusive, unsanitary and unhealthy conditions of detention. 37.     According to the applicant,   from 30 November 2019 to 3 January 2020, he was placed in solitary confinement. During that time i) he was   not   given any warm clothing or socks, was left in a cell in used shorts and t-shirt provided by the prison and refused access to his own clothing; ii)   he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii)   he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv) the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v) the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi) he was not given any water or cigarettes from 10 p.m. - 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days. 38.     Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq. m. and each detainee had less than 4 sq. m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell. 39.     The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to 10 persons who left the prison at least weekly [1] . The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once. While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV. The applicant’s medical background 40 .     The applicant is thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report stating that he was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”. Constitutional redress proceedings 41.     The applicant instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence on 1 May 2020, seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 §   4 of the Convention and asked the court to release him. First-instance 42 .     By a judgment of 29 May 2020 the Civil Court (First Hall) in its constitutional competence found a breach of the applicant’s rights under Article 5. 43.     The court referred to the meaning of a State of Emergency under Article 47 of the Constitution and that of the right to liberty under the Constitution and the Convention. It was of the view that all compilation of evidence proceedings in respect of persons who were remanded in custody pending trial (and who were presumed innocent unless they pleaded guilty) should, a priori , have been considered urgent and should not have been subject to any urgency or public interest application [under Regulation 3 of L.N. 61 of 2020]. In the court’s view, the discretion given to judges under L.N. 61 and 65 of 2020 could lead to conflicting decisions. In fact in certain cases proceedings continued despite the accused being on bail, while those of others, including the applicant were suspended sine die . 44.     The court reiterated that the law had to be precise, accessible and foreseeable, so as to avoid any risk of arbitrariness. It required safeguards against arbitrariness which included the existence of clear legal provisions for ordering detention, for extending detention, and for setting time-limits for detention. In the court’s view a complete suspension of proceedings could never be considered reasonable, and according to the Court’s case-law the fact that detention was prolonged for an unlimited and unforeseeable period of time was contrary to the principle of legal certainty. 45.     The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) had also stated that any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of Covid-19 should have a legal basis and be necessary, proportionate, respectful of human dignity, and restricted in time. Fair Trials International [a United Kingdom Non-Governmental Organisation] had also stated [2] that it was essential that States continue to carry out essential functions, including the processing of criminal cases, and safeguarding the rights and welfare of criminal defendants, especially those who were detained. Moreover, according to the court, had the health situation necessitated such measures, then they should have applied to everyone and no exceptions should have been made. 46.     The court noted that the Superintendent of Public Health had testified that it was not within her remit to deal with situations concerning the continuation of compilation of evidence proceedings, which was to be decided by the courts, after which she would give [logistical] advice according to the specific circumstances. However in the court’s opinion, it was for the Superintendent of Public Health together with the Court Services Agency to undertake a risk assessment on the publicly accessible areas of the courts, in a real scenario of compilation of evidence proceedings had they to be continued. It should not have been left to the courts to determine whether considerations of public health prevailed over the fundamental rights of such accused persons, and whether the court environment was sufficiently safe, and if not, what measures should be taken. In the court’s opinion, since the President had not issued a proclamation under Article 47 (2) (b) of the Constitution (and not derogated in terms of Article 15 of the Convention), and the current measures were solely the result of a declaration of a public health emergency in terms of the Public Health Act, the legal notice could not prevail over fundamental rights. Thus, the suspension of the compilation of evidence for persons held in custody was in breach of Article 5, and its equivalent in the Constitution. For that reason, the court held that the Attorney General should not have relied on those legal notices to refrain from sending the case file back to the court for proceedings to continue. 47 .     The court thus ordered that the suspension be lifted and that the case file be sent back to the inquiry court for the compilation of evidence proceedings to resume. It would then be for that court to decide on any requests for release. Appeal 48.     On appeal by the State Advocate, on 23 November 2020 the Constitutional Court reversed the first-instance judgment. 49.     The Constitutional Court held that the applicant had not suffered an indefinite detention. Indeed, the impugned legal notice had given the courts discretion as to whether or not to continue proceedings as well as to decide on bail requests. On that basis, the multiple bail requests presented by the applicant throughout the time when the courts had been closed, had nevertheless all been decided by the courts on the basis of an individualised assessment. 50.     Furthermore, on the basis of that discretion, on 19 May 2020 the Criminal Court lifted the suspension (see paragraph 34 above) and the applicant’s proceedings had been resumed while the courts had still been closed. Thus, the impugned legal notices had not affected him. 51.     However, even assuming that he had been affected, the State had opted for a state of public health emergency instead of a state of public emergency. The former could legitimately be issued by the Superintendent of Public Health under Article 14 of Chapter 465 of the Laws of Malta, in view of the Covid-19 pandemic which amounted to an actual or imminent risk to public health under its Article 2 and which had been justified.   Moreover, Regulation 3 (2) of L.N. 61 of 2020 gave the courts the above-mentioned discretion. 52.     Provided that the legislature remained within the bounds of its margin of appreciation, 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. This was even more so when the competing interest was the protection of public health, where the State had a wide margin of appreciation in determining what measures where necessary in a context of public health emergency. The first-instance constitutional jurisdiction had failed to take into account that a State had a positive obligation to safeguard the right to life. 53.     The protection of public health was clearly a legitimate aim under the Convention, so much so that Article 5 [§ 1 (e)] also allowed the detention of persons to prevent contagion. While that provision was not applicable in the present case, the court could nevertheless draw inspiration from its principles. The Constitutional Court considered that restrictions on personal liberty were allowed to protect public health, as long as they were necessary to achieve the aim pursued and a fair balance had been achieved. Indeed, the United Nations Economic and Social Council had recognised that public health “may be invoked as a ground for limiting certain rights in order to allow a State to take measures dealing with a serious threat to the health of the population or individual members of the population”. The Siracusa principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights also allowed for such measures in the interest of public health as long as they were lawful, necessary and proportionate. 54.     The jurisprudence of various countries in the world was testimony to this. In particular in a German case concerning similar complaints (see HEs   1 Ws 84/20 (OLG Karlsruhe, 30/03/2020)), the Karlsruhe Higher Regional Court held that in view of the high risk of infection and the lack of knowledge about the extent of the illness and of the risk of contagion for the persons involved in criminal proceedings the continued detention of the accused was proportionate to the aim pursued and not unlawful, irrespective of the fact that there was no certainty as to when proceedings could continue. This was so as long as there was a continuous monitoring of the situation and that the case would resume as soon as possible, if necessary, by putting in place specific measures and that the examination of the lawfulness of the arrest would be facilitated. Similarly, on 20   March 2020, the French Conseil d’État ( statuant au contentieux N.439674 Syndicat Jeunes Medecins (22/03/2020)) held that the State had the power and the obligation to take measures for the protection of public health and to limit the propagation of the epidemic, as long as they were necessary and proportionate. In particular, in relation to the measures affecting courts and tribunals, the French Conseil d’ État considered that these were not in breach of fundamental rights given the legitimate aim pursued and since they nevertheless provided for access to court. Also, in Adrian Doru Cosar v.   Governor of HMP Wandsworth et and Mateusz Chmurzynski v.   Governor of HMP Wandsworth et ([2020] EWHC 1142 (Admin), [2020] All ER (D)   64 (11/05/2020) the courts of the United Kingdom found that the prolonged detention of a person due to a lengthening of the extradition process as a result of the Covid-19 pandemic was not in breach of the right to liberty given that the individual had had access to apply for temporary release, and there existed judicial review of his eventual extradition. 55 .     Thus, according to the Constitutional Court, while it was true that the legal notices had not set a time limit for the measures put in place, the fact that the courts were given discretion - and in fact in the applicant’s case they resumed proceedings while the courts were still closed - limited the impact such measures had on the applicant. This was besides the fact that the measures had been put in place in exceptional circumstances and were in place for less than three months. The measures were thus temporary and of a limited nature and therefore not in breach of the applicant’s rights. 56 .     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. Indeed, between the 13 March and 19 May 2019 the applicant had made one request challenging the lawfulness of his detention, which was decided on the following day, three requests for bail which were decided in a few days and initiated these constitutional redress proceedings. Furthermore, the legal basis of his detention was the Criminal Code not the impugned legal notices, which could not therefore have given rise to an unlimited or unforeseeable detention. The domestic decision on his bail request had clearly shown that the courts had not been satisfied that the applicant had given sufficient guarantees for his appearance at trial, listing a number of risks which had existed irrespective of any suspension of the courts. It followed that the applicant’s complaint concerning a period of detention of less than two months was manifestly ill-founded, in view of the above considerations. RELEVANT LEGAL FRAMEWORK Relevant domestic law The Constitution 57.     Article 47 of the Constitution of Malta, in so far as relevant, reads as follows: “(2)     In this Chapter “period of public emergency” means any period during which – (a)     Malta is engaged in any war; or (b)     there is in force a proclamation by the President declaring that a state of public emergency exists; or (c)     there is in force a resolution of the House of Representatives supported by the votes of not less than two-thirds of all the Members of the House declaring that democratic institutions in Malta are threatened by subversion.” The Criminal Code 58 .     The relevant articles of the Criminal Code, in so far as relevant, read as follows: Article 405 “(1)     After the committal of the accused for trial, and before the filing of the indictment, the court shall, upon the demand in writing of the Attorney General, further examine any witness previously heard or examine any new witness. Attorney General to forward record of inquiry together with demand. (2)     The Attorney General shall, for such purpose, transmit to the court the record of inquiry together with the demand, stating therein the subject on which the examination or re-examination is to take place. (3)     The witnesses shall be examined or re-examined in the presence of the accused in order that he may have the opportunity of cross-examining them, and, for such purpose, the court shall order the accused, if in custody, to be brought up, and, if not in custody, to be summoned to appear before it. (...)”   Article 412B [ Habeas corpus ] “(1)     Any person in custody for an offence for which he is charged or accused before the Court of Magistrates and who, at any stage other than that to which article 574A applies, alleges that his continued detention is not in accordance with the law may at any time apply to the court demanding his release from custody. Any such application shall be appointed for hearing with urgency and together with the date of the hearing shall be served on the same day of the application on the Commissioner of Police or, as the case may be, on the Commissioner of Police and the Attorney General, who may file a reply thereto by not later than the day of the hearing. (...) (3)     Where the application is filed in connection with proceedings pending before the Court of Magistrates as a court of criminal inquiry before a bill of indictment has been filed and the record of the inquiry is with the Attorney General in connection with any act of the proceedings the application shall be filed in the Criminal Court and the aforegoing provisions of this article shall mutatis mutandis apply thereto. (...)” Article 574(1) [Bail] “Any person charged or accused who is in custody for any crime or contravention may, on application or as provided in article 574A, be granted temporary release from custody, upon giving sufficient security to appear at the proceedings at the appointed time and place under such conditions as the court may consider proper to impose in the decree granting bail which decree shall in each case be served on the person charged or accused.” Article 574A “(1)     When the person charged or accused who is in custody is first brought before the Court of Magistrates, whether as a court of criminal judicature or as a court of criminal inquiry, the Court shall have the charges read out to the person charged or accused and, after examining the person charged as provided in article 392 as the proceedings may require, shall summarily hear the prosecuting or arraigning officer and any evidence produced by that officer on the reasons supporting the charges and on the reasons and circumstances, if any, militating against the release of the person charged or accused. (...) (8)     If the court does not find cause to release unconditionally the person charged or accused and refuses to grant that person bail the court shall remand that person into custody and the provisions of article 575(11) shall apply.” Article 575 “(1)     Saving the provisions of article 574(2), in the case of -   (ii)     a person accused of any crime liable to the punishment of imprisonment for life, the court may grant bail, only if, after taking into consideration all the circumstances of the case, the nature and seriousness of the offence, the character, antecedents, associations and community ties of the accused, as well as any other matter which appears to be relevant, it is satisfied that there is no danger that the accused if released on bail - ( a )     will not appear when ordered by the authority specified in the bail bond; or ( b )     will abscond or leave Malta; or ( c )     will not observe any of the conditions which the court would consider proper to impose in its decree granting bail; or ( d )     will interfere or attempt to interfere with witnesses or otherwise obstruct or attempt to obstruct the course of justice in relation to himself or to any other person; or ( e )     will commit any other offence. (...) (5)     Where in the case of a person accused of a crime in respect of which the Court of Magistrates has proceeded to the necessary inquiry, the Attorney General has not either - ( a )     filed the indictment, or ( b )     sent the accused to be tried by the Court of Magistrates as provided in paragraph of article 370(3)( a ) or in article 433(5) or in similar provisions in any other law within the terms specified in subarticle (6), to run from the day on which the person accused is brought before the said court, or from the day on which he is arrested as provided in article 397(5), that person shall be granted bail. (6) ( a )     The terms referred to in the preceding subarticle are: (iii)     twenty months in the case of a crime liable to the punishment of imprisonment of nine years or more. (b)     The terms mentioned in paragraph (a) shall be held in abeyance for the corresponding period during which the terms referred to in articles 401, 407 and in article 432(3) are held in abeyance for any of the reasons mentioned in article 402(1) and (2), as well as for such period during which the court is unable to proceed with the inquiry except after the determination of an