Landmark ruling on Degiorgio taps reins in MSS but puts in doubt murder evidence

Criminal investigations will have to be conducted differently from now on, and the black-on-white admission that Malta Security Services can intercept communications without a legal basis raises serious questions also for journalists

Phone intercepts by the Security Services and their use in criminal proceedings are a hotly disputed matter in the human rights sphere
Phone intercepts by the Security Services and their use in criminal proceedings are a hotly disputed matter in the human rights sphere

Mr Justice Toni Abela’s decision this week to declare illegal the phone taps used to prosecute two men accused of murdering journalist Daphne Caruana Galizia will have far-reaching ramifications, beyond the eventual trial of the Degiorgio brothers, in which the prosecution will likely not be able to present key evidence to the jury.

Criminal investigations will have to be conducted differently from now on, and the black-on-white admission that Malta Security Services can intercept communications without a legal basis raises serious questions also for journalists and their sources.

The subject of telephone intercepts by the Security Services and their use in criminal proceedings is a hotly disputed one in the human rights sphere.

A court decision this week was a reminder that the laws which sanction such investigations must, in themselves, be characterised by a lack of transparency, “otherwise there would be no point in them.”

And the investigations carried out by the security services of every nation would not be secret at all if they were to be carried out in the ordinary manner as in the case of other ordinary crimes.

But Mr Justice Toni Abela this week noted that the Head of the Security Services, Joseph Bugeja, had been summoned to the stand to be questioned about telephone interception warrants on the Degiorgios, the accused in the assassination of Daphne Caruana Galizia, but had objected to testifying, claiming the law precluded him from doing so.

Quoting from several authoritative textbooks, the court said that every act of governmental power, “that is, every act which affects the legal rights, duties, or liberties of any person must be shown to have a strictly legal pedigree.”

“From this passage, two important points emerge. That these courts can never be held back from overseeing the actions of the State, even if ordinary law expressly provides for this exclusion. In this case, an exclusion such as this must always be taken as pro non scripta. Precisely in connection with a similar complaint, our courts have been clear and unequivocal about this point…”

Judge Toni Abela
Judge Toni Abela

So the word of a public official saying they acted legally, is not enough to bring to naught the jurisdiction of the court and deprive the individual of his Constitutionally guaranteed right of access to the court, Abela ruled.

If the court does not have the power to order that a warrant be shown, and therefore see if the law was obeyed, “the Head of the Security Services would have been placed above the law, something which could not have passed through the mind of the legislator who wishes to protect the Constitution, as it is axiomatic that in the Rule of Law, nobody is above the law. An interpretation of the law in that sense must necessarily be an incorrect interpretation.”

Abela cited the European Court of Human Rights in Klass v Germany, which held that while national authorities enjoy a certain margin of appreciation in choosing how to protect national security, there must also be adequate and effective safeguards against abuse.

Surely, democratic societies find themselves threatened by highly sophisticated forms of espionage and terrorism, and States must be able to counter such threats with the secret surveillance of subversive elements – that includes the surveillance of mail, post and telecommunications in exceptional conditions yet necessary in a democratic society to prevent crime.

But the courts must take into account the circumstances of the case.

Abela said the courts are “constitutional creatures” entrusted with the “absolute power… to annul even parliamentary laws, much more so scrutinise the actions of some Authority.”

George Degiorgio challenged the phone taps used in criminal proceedings against him
George Degiorgio challenged the phone taps used in criminal proceedings against him

The law was “crystal clear” that when a warrant is not present, it must logically and legally follow that the interception is against the law.

The Court of Appeal in its superior jurisdiction had already ruled in July last year that a warrant was the best evidence of the legality of the phone taps and that in criminal proceedings the best evidence had to be produced.

“Alternatively, we end up in a situation where a person can say what they want without the obligation to substantiate what they are saying… In the circumstances, the Head of the Security Services, after having testified that intercepts were made after a warrant was issued, cannot use the dispositions of the law to avoid exhibiting the best evidence that it was done according to law.”

Who bears responsibility?

The other question pertinent to this case is whether the MSS is liable to any consequences, given that its intercepts of George Degiorgio stumbled into what would later become the Caruana Galizia murder plot. Was the MSS then in a position to act and protect Caruana Galizia’s life and what is being done to stop this from happening again?

And is the case against the Degiorgios, built around evidence which is now declared inadmissible, a prosecution that was designed to fail at the last hurdle?

Whether anyone involved, from the Prime Minister down, will assume responsibility for this situation remains to be seen.

But there is no denying that with this judgment, the intelligence-gathering rules have now changed and judicial scrutiny is the name of the game now.

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