Degiorgio phone taps not illegal, says Security Service chief

The Head of the Malta Security Services has filed his reply to an appeal filed by murder suspect George Degiorgio against a judgment which declared that the use of phone taps breached his rights, by insisting that the intercepts were not illegal and that the law precluded him from exhibiting phone tap warrants at the request of anyone but the court.

Degiorgio, whose trial date over the 2017 murder of journalist Daphne Caruana Galizia is getting ever closer, had also asked the court to declare the Security Services Act to be unconstitutional and to expunge any evidence obtained by the prosecution as a result of that act, from the case against him.

In his reply to the Constitutional application, the Head of the Security Services insisted that the telephone interceptions had been carried out according to law.

Lawyer Mark Simiana, who filed the application on the MSS chief’s behalf, said that Degiorgio was mistaken in concluding that the judgment handed down on 22 September 2021 had ruled that the phone taps were illegal. “This issue was left unprejudiced in that judgment and what was concluded was only that once the interceptions were obtained legally, then any other evidence referring to their contents should be taken as inadmissible, as that content was not subject to the oversight of the defence or the court.”

Quoting from relevant case law from the European Court of Human Rights in Strasbourg, the lawyer said that the use of such evidence in criminal proceedings did not automatically lead to a violation of the right to a fair trial and that due weight had to be given to the defence’s opportunity to contest that evidence, as well as the criminal process in its entirety. This is in order to ensure that the process is fair to the accused, even if the evidence that had been obtained illegally is used.

Simiana argued that Degiorgio’s arguments were “baseless”, pointing out that the judgment had made it clear that the phone taps could not be used in his eventual trial by jury. “The applicant asks, how can a violation subsist in this case where the interceptions are not exhibited as evidence, when no violation was found about evidence obtained illegally or not legally being subsequently used as evidence in the criminal process.”

The lawyer pointed out that the Court of Criminal Appeal had gone a step further and ordered the expunging of all evidence relating to the intercepts from the acts of the case.

Neither was there a virulent press campaign against the accused, as suggested by the defence, said Simiana. “It is true that in this case the compilation of evidence is closed and the jury is approaching. However, the reporting that took place is not one that described the applicant as guilty. That reportage was solely based upon testimony given in court about the telephone intercepts during the compilation of evidence.”

He went on to argue that there was “no concrete basis” for one to conclude that jurors, who would eventually try Degiorgio and his brother Alfred, would be influenced by phone taps which they hadn’t heard and would not ever hear and which would neither be referred to in the evidence

The decision by the Court of Criminal Appeal had adequately safeguarded the accused’s rights, said the lawyer.

On another ground of appeal cited by Degiorgio, that of the lack of judicial scrutiny over MSS’ operations, the lawyer argued that the right to a fair trial enshrined in the European Convention on Human Rights and the Constitution of Malta did not apply to investigations which, by their nature, preceded the date when the person under investigation is warned or informed of the investigation. “As this case deals with interceptions which are only useful and worthwhile if carried out without the knowledge of the person investigated, then it is evident that Article 6 [right to a fair trial] does not apply at the stage mentioned by the applicant.”

This apart from the fact that phone taps by the State were justifiable in a democratic society for the purpose of reigning in or suppressing serious crimes which could harm citizens, said the lawyer, arguing that Article 8 of the convention implied that judicial scrutiny was not necessary.

Rebutting the third ground of the appeal, regarding the secrecy surrounding phone tapping warrants issued by magistrates and the MSS chief’s reluctance to testify about them, Simiana argued that the law itself, together with jurisprudence, had the effect of preventing the exhibiting of such warrants unless ordered by the court itself. Without this limitation, it would be possible for the Head of MSS and his subalterns to be summoned as witnesses in any cases, including civil cases between private citizens.

On the request for the expunging of all evidence obtained by illegal phone taps, the MSS head insisted that they were not obtained illegally and even if they had, they remained admissible as evidence, as established by jurisprudence.

As for Degiorgio’s request that the court declares the Security Services Act null in its entirety, the lawyer pointed out that the Constitution laid down that any ordinary law was without effect insofar as it was inconsistent with the Constitution and not beyond that. Should Degiorgio’s argument be upheld, it would only affect those legal dispositions which violated the Constitution and not the whole law.