22 Mar Conditions of detention amid Covid-19 pandemic did not breach the European Convention

In the case of Fenech v. Malta (application no. 19090/20, 01.03.2022) the European Court of Human Rights held, unanimously, that therehad been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.

The applicant is a businessman who was arrested, in November 2019, on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017 and has since then been remanded in custody. The case concerned his conditions of detention in the Corradino Correctional Facility and whether the Maltese authorities took adequate measures to protect him from contracting Covid-19 whilst in prison, in particular because he has only one kidney. The Court has already decided in this case in the application no. 19090/20 (30.03.2021) and found that applicant’s complaints under Article 5 §§ 1, 3 and 4 (right to liberty and security) and Article 6 § 1 (right to a fair trial) of the European Convention were manifestly ill-founded and had to be rejected. The Court had then decided to adjourn the examination of the applicant’s complaints under Articles 2 and 3. Therefore, the Court has now examined these two articles.

In this judgment, the Court reiterated that in relation to Mr Fenech’s period in isolation removal of contact with other prisoners for security, disciplinary or protective reasons did not in itself amount to inhuman treatment or degrading punishment. The Court found in particular that the applicant’s period of segregation from others – due to having tested positive for cocaine – had lasted for no longer than 35 days; he had not suffered any harmful psychological or physical effects as a result, and the restrictions applied had not amounted to complete sensory isolation. 

It also held unanimously that there had been no violation of Article 3 of the European Convention in relation to the conditions of detention later in the dormitory. There had been no overcrowding, and as for the other restrictions that Mr Fenech complained of, the Court considered that they had occurred within a very specific context, namely during a public health emergency, and had been introduced for important health reasons. Moreover, they had been imposed not only on the applicant but on society at large. 

In regard to Article 2 (right to life) taken with Article 3 the Court did not exclude the applicability of Article 2 in certain Covid-19 related cases. However, in the circumstances of this case, it considered that the provision was not applicable. Indeed, more than a year and a half after the start of the pandemic, Mr Fenech had not been infected and vaccination had been made available to him as early as April 2021. In any event, even if he were to contract Covid-19, he had not provided any studies or relevant materials that gave a clear picture of the chances that a man of his age (early forties), lacking a kidney, would certainly or quite likely die of the disease, were he to be infected (pre- or post-vaccination).

The Court also held that there had been no violation of Article 3 in relation to the State’s obligation to preserve his health and well-being. It considered that the authorities had put in place relevant measures and had been vigilant in adapting their protocols to the evolving situation. While provision should be made to allow prisoners at highest risk to be separated from others, Mr Fenech had not shown that he fell within the category of the most vulnerable. The fact that he shared a dormitory and used the same medical, sanitary, catering and other facilities with other non-Covid-19-infected detainees did not in itself raise an issue under Article 3.

References from the official website of the European Court of Human Rights