‘Incestuous’ phone-tapping laws should be updated – judge

A Maltese judge has slammed the “institutional incest” that allows the minister responsible for the Malta Security Services to order telephonic interceptions without judicial oversight. 

The comment was delivered in a judgment by Toni Abela, in a human rights breach claim brought by Charles ‘Pips’ Muscat, arrested in 2001 in connection with the importation of a considerable amount of cocaine and cannabis, after a surveillance operation run in tandem by MSS and the police. 

But while Abela did not uphold Muscat’s contestation of the validity of the phone taps, due to the complete absence of legal safeguards imposed by the EU, the judge could not ignore the fact that Malta’s surveillance laws lacked any form of active judicial oversight. 

Judge Toni Abela has called out Malta’s outdated law regulating the secret service because it still gives the minister unfettered discretion to sign on phone intercept warrants requested by the Security Service without judicial oversight

“Although the law truly does not offer the necessary safeguards, this court has not found any abuse in this case,” Mr Justice Abela said of the fact that Muscat’s phone-calls from Corradino Correctional Facility were being monitored by the MSS. 

“However, the abuse or not in such cases only depends on the people who are executing the law, and not because of the law itself. The rule of law is that – rule of law, not the rule of human beings. 

“The Court notes that the head of the Malta Security Services is appointed by the Prime Minister, and that the MSS chief appoints the security officers. It is the prime minister who constitutionally appoints the minister who issues a phone-tapping warrant. This Court cannot but note this institutionally incestuous situation, and it behoves the legislator to once again revisit this 30-year-old law to update it.” 

The Security Services Act came into force in 1996 and apart from two minor changes in 1997 and 2020 has remained intact. Shortly after the Labour Party came into government, then home affairs minister Manuel Mallia had introduced the practice of using water-marked paper when signing on phone tapping warrants requested by the secret service. The administrative decision was intended to provide an additional level of accountability. 

Former Labour minister Jose Herrera had also called for an overhaul of the law to introduce judicial oversight on interception warrants. He also made the case for drawing a distinction between warrants for intrusive surveillance in criminal cases and more serious matters involving national security, where political oversight would still be necessary. 

A proposal for reform on these lines had also been made by former Nationalist MP Franco Debono in 2011. 

However, the law was never changed and the power to sign off on warrants has remained in the hands of the minister without judicial oversight. 

Charles Muscat was arrested in 2001 in connection with the importation of a considerable amount of cocaine and cannabis, after a surveillance operation run in tandem by MSS and the police

Rights’ breach claim 

Charles Muscat, known as il-Pips, had been, along with 18 others, accused with conspiracy to traffic drugs based on phone calls intercepted by the MSS. 

Muscat gained notoriety during the 1990s, eventually being sentenced to 25 years’ imprisonment in 1999 for a cocaine-fuelled double homicide. He was subsequently granted early release in 2011 for good behaviour. 

The case in question, however, dates to December 2001, when drug squad police uncovered an operation to import a considerable amount of cocaine and cannabis from the Netherlands. The police investigation was helped by the MSS, which had been tapping telephone calls connected to the alleged drug importation plan. 

During the investigation, it emerged that Muscat, who at the time was an inmate at Corradino prison, had been talking with certain people over the supply of large quantities of drugs. 

Muscat was subsequently arraigned in court on charges relating to conspiracy, importation, trafficking and possession of drugs. 

Court decision 

The Court, presided by Mr Justice Toni Abela, effectively found that while the absolute power for a government minister to authorise MSSS phone-tapping “was likely to breach fundamental human rights”, it still found that the judicious use of surveillance on a prison inmate suspected of trafficking drugs during his incarceration, was not a breach of European Convention freedoms. 

Abela said he would not expunge the interceptions from the court record, a decision which he said should be up to the Criminal Court. 

“The European Convention of Human Rights recognises a State’s right to practice these kind of interceptions when it said that democratic societies ‘nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order to effectively to counter such threats, undertake the secret surveillance of subversive elements operating within its jurisdiction’.” 

Abela cited the Klass judgment in saying that under exceptional conditions, secret surveillance was necessary in a democratic society for the prevention of disorder or crime, even if Muscat was in contact with his family members, namely his wife, when carrying out his prison calls. The judge cited a host of mafia convicts’ cases in which the European Court of Human Rights found the use of family visits to convey orders and instructions to the outside world. 

“In this case, the prisoner was synchronising a web of criminality on the outside. And here the European Court has already noted the importance of using secret surveillance to verify a reasonable suspicion against a person when there are factual indications for suspecting the planning of criminal acts.” 

Mr Justice Abela said he had no doubt that Muscat, in taking the risk to break the law while in prison, knew his calls from prison were being intercepted. “If he did not know he could have asked his lawyers to regulate his conduct. The law allows individuals to know not just the consequences of breaching it, but to serve as a deterrent.” 

Franco Debono and Francesca Zarb were lawyers for Charles Steven Muscat.