‘Malta’s secret services can tap phones on a minister’s order. It must change’

Phone-tapping has long been a source of controversy in Malta. In the 1980s, the government had been accused of secretly monitoring Opposition activity for political purposes. More recently, the introduction of legal wiretapping for criminal investigation purposes likewise raised questions concerning the right to privacy, among other issues.

This week, a team of lawyers filed a Constitutional application to challenge the procedure on legal grounds: kick-starting a case that may cause ripples on the surface of Malta’s criminal jurisprudence.

Lawyers Franco Debono, Amadeus Cachia and Alex Scerri Herrera filed the writ against the Malta Security Services and the Maltese government, on behalf of Joseph Lebrun: one of three suspects currently on trial over a seaborne illegal drug smuggling operation in 2005.

Lebrun’s defence team argues that the telephone intercepts used by the police to arrest and prosecute their client had breached his fundamental right to a fair hearing. The intercepts had been made at the request of the police – and not a judicial authority, as is usually the case in foreign jurisdictions – and had to be authorised directly by the Home Affairs Ministry, as mandated by law.

The Constitutional application questions whether the discretion enjoyed by the ministry in such decisions constitutes a violation of the separation of powers, whereby the administrative law enforcement sector is supposed to be fully autonomous and independent of political interference.

Moreover, the absence of judicial scrutiny casts doubt over the integrity of the entire process, the lawyers said. The blanket secrecy surrounding this procedure goes against the legal principle of ‘equality of arms’, which requires that there be a fair balance between the opportunities afforded the parties involved in litigation.  

Debono, Cachia and Scerri Herrera also argued that the legal infrastructure governing such surveillance methods is itself flawed. Unlike its equivalents in other EU member states, Maltese law does not distinguish between phone records used only for criminal detection purposes, and records presented as evidence by the prosecution in court. Nor does it provide clear parameters for when and how the technology may or may not be used.

They, therefore, asked the court to declare that the holding of service provider data and all access and use by the police is illegal.

In comments to MaltaToday, Franco Debono outlined that there may be serious ramifications... not just for analogous cases, but also for the broader issues of democracy and fundamental human rights.  

“The issues we raised are concerns that affect every Maltese citizen, since we are here dealing with an alleged breach of two of the most sacrosanct of fundamental human rights: the right to privacy, and the right to a fair trial,” he said.

“As can be seen from various European Court of Human Rights cases, the grievances raised have been considered a threat to democracy even in the context of a lack of separation of powers, and the lack of transparency or adequate mechanisms of scrutiny when we are dealing with basic human rights.”

The Constitutional application refers specifically to three rulings by the ECHR. In Leander vs Sweden, the Strasbourg court noted that “there is the risk of undermining or even destroying democracy on the grounds of defending it”; while in Weber and Saravia vs Germany, the ECHR ruling highlighted “the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it.” 

Lastly, in Lamber vs France the ECHR observed that: “the rule of law implies, inter alia, that interference by the executive authorities with an individual’s rights should be subject to an effective control.”

Such control, Debono and his colleagues contend, is lacking in the local legislation. “At present there is no transparency, no accountability in the process, and above all no mechanism to ensure scrutiny by an independent body. This would be a problem with any law, let alone one which impinges so heavily on two such important rights: the right to privacy, and the right to a fair trial.”

Separately, the procedure may even give rise to discrimination in individual cases. “If the police are investigating more than one suspect over the same crime: on what grounds do they decide to tap Suspect X’s phone, but not Suspect Y? There may be reasons, but the law has to be clear on the parameters within which this technology is used. Even because, in a system so politically charged as ours, there may conceivably be abuse.”

Nonetheless, Debono concedes that these issues must be counterbalanced by the State’s duty to uphold and enforce the law

“There is a balance to be struck here, as there is in any country where these two rights seem to collide. We’re not asking for a re-invention of the wheel: in other jurisdictions, there are safeguards and precautions that are lacking in the local scenario. Our argument is that, in a healthy democracy, the rights of citizens are just as important as the State’s prerogative to investigate crime. This should be reflected in our legislation.”

Asked to account for why, in his view, the system is so flawed, Debono pointed out that Malta’s law on phone-tapping – like so many other articles of legislation, was lifted from various other sources, and adapted haphazardly to the local legal landscape.

“We see this is in other laws, too: there is a tendency to cherry-pick parts from here and there, and assemble them however we see fit. Naturally, Malta’s legislature is free to draw up laws suited to its own context... but we cannot lose sight of the purpose of those laws, and the sacrosanct principles to which they have to adhere.” 

Effectively, the present system has been in place for a number of years: suggesting that many previous prosecutions may have been vitiated on the same grounds. If the Constitutional Court upholds this application... would it result in past convictions being overturned?

“As lawyers, the most we can do is present our case to the courts; it is up to the Constitutional court to decide, and naturally, we will bow to its decision. In the event of a positive verdict [for us], however, there may well be ramifications on past convictions, and also on pending cases. However, the broader implications would be that Maltese legislation would have to be revisited. If our application is upheld, it would imply that the procedure is unconstitutional, and therefore illegal. The law would, therefore, have to change.”