Judge refuses to entertain Alfred Degiorgio human rights claim over retention of phone data

A court of constitutional jurisdiction has declined to exercise its powers in a case filed by one of the men indicted for the murder of Daphne Caruana Galizia, in which he sought to obtain a declaration that his rights had been breached by the use of incriminating mobile phone data, retained under an EU direction which had subsequently been declared null.

In a judgement delivered this morning, Madam Justice Anna Felice dismissed the case, filed in 2018 by Alfred Degiorgio against the Attorney General, the Commissioner of Police and the Caruana Galizia family. 

Degiorgio’s lawyer had argued that EU Directive 2006/24/EC on the retention of data from electronic communications, placed an obligation on service providers to keep user data for use by the national authorities. The directive was transposed into local law by legal notice 198 of 2008. He argued that in a 2014 case before the Court of Justice of the European Union the directive was declared invalid and as a result the legal notice that saw it being transposed into Maltese law was null and void.

Therefore, the retention of data by services providers and all access to it by the authorities was illegal, lawyer William Cuschieri had submitted.

Cuschieri had observed that the data had not only been retained but also passed on to a court expert, who had requested it from service providers on the court’s authority. It had also been shared with the FBI.

The Attorney General had argued that an EU directive could not be invoked in court, as it was not directly enforceable and fell outside the competence of the court.

The Attorney General argued that even though the European Court of Justice had annulled the directive under which the plaintiff was alleging the information had been gathered - something which the defendants strongly denied), the fact that the ECJ had annulled a directive upon which local law was based, did not automatically make the local law null. The end result of the revocation of the EU directive was that laws on mobile data retention across the EU were no longer harmonised and that it was the prerogative of member states to regulate the matter.

The court noted that after this case was filed, the plaintiff and his brother had been indicted for the murder of Daphne Caruana Galizia, together with Vincent Muscat. Some of the testimony delivered by the lead investigator was later expunged from the case file on the orders of the Court of Criminal Appeal in September 2021. The expunged testimony dealt with information obtained from mobile telephony service provider Vodafone in view of the fact that it had been obtained illegally and was therefore inadmissible.

The Criminal Court had noted decisions by the European Court of Justice on the implementation of directives relating to the processing of personal data and the protection of privacy, but ruled that the national and international repercussions of the case at hand meant that it did not fall within the parameters of proportionality which the law sought to protect. 

That court had dismissed the case, applying a derogation contained in the European law itself, applicable solely to investigations into murders and organised crime.

Even though the law under which the information was obtained had subsequently been declared invalid, the courts’ consistent interpretation of this law allowed retention and access to data in the most serious of cases, such as this one, the first court had said.

Degiorgio had filed an appeal to this decision, but the appeal was rejected, the Court of Criminal Appeal ruling that while service providers are no longer obliged to keep user data, there was nothing to stop them from holding on to it, especially if there is an order by an inquiring magistrate. Such a decision “evidently presumed a calculation between private interests and that of society in its fight against organised crime and in the interests of national security, therefore there is nothing illicit in that access,” the court had said.

Madam justice Anna Felice, presiding the First Hall of the Civil Court in its Constitutional jurisdiction, observed that the function of her court was not to revise the decisions of other courts, but was limited to determining whether or not a fundamental human right was breached in the course of, or as a result of, those proceedings.

“The applicant cannot expect this court to once again examine the merits of his complaint, which he had already made the opportune pleas before the Criminal Court. Above all, it is the courts of criminal jurisdiction which are competent to decide on the admissibility of evidence and those courts, like every other court, have the duty to apply and interpret the law in a manner conforming with fundamental human rights under the Constitution and Convention as they, in fact, have done in this case.”

The judge ruled that in the circumstances, she “could not but decline” to exercise the court’s constitutional powers.