Constitutional court revokes €10,000 award to George Degiorgio over unauthorised phone tapping

The three judges, however, agreed with the first court’s highlighting of the need for legislative revision of the Security Service Act to bring it in line with the European Convention on Human Rights

The Constitutional Court has revoked the €10,000 in damages awarded to one of the hitmen who admitted to murdering journalist Daphne Caruana Galizia over phone taps which had breached his privacy.

The decision was handed down on Monday by Chief Justice Mark Chetcuti, Mr. Justice Giannino Caruana Demajo and Mr, Justice Anthony Ellul, in the appeal to the October 2021 judgement which had ordered the State to pay compensation to George Degiorgio after finding that the notorious criminal’s right to private and family life had been breached by unauthorised phone taps.

Judges agree with “very valid and relevant observations” about oversight of MSS’ activities.

In its decision on Monday, the Constitutional Court said that Mr. Justice Toni Abela - who had delivered the 2021 judgement - had made “very valid and relevant observations about the Security Service Act,” stating that the function of that Service is to protect national security, in particular from the threat of organised crime and must act in the interest of Malta’s economic wellbeing and the safety of the public, “in particular, the prevention or revealing of grave crimes.”

“Obviously where the power of the Executive is exercised in secret, the risk of abuse increases. One must also remember that the head of the Service is nominated by the Prime Minister, and the warrants, phone taps amongst them, are issued by the Minister responsible for the Security Service. In fact the Minister also has the power to extend such warrants as well as to cancel them. 

“Besides this, the law does not provide for any scrutiny by an authority independent of the executive arm of government in the stage when a warrant is issued or whilst it is in force. Therefore there is no authority which scrutinises the proportionality of the use of secret surveillance measures,” said the judges.

“That exercises [to determine the legality or otherwise of such warrants] take place ex post facto (after the fact) does not remove the danger of abuse in the stage of issuing the warrant or during the surveillance.”

The three judges agreed with the first court’s highlighting of the need for legislative revision of the Act to bring it in line with the European Convention on Human Rights. “This way it would also guarantee that there is no risk that the work done to protect national security be undone because the evidence gathered would not be admissible in criminal proceedings.”

However, the judges also pointed out that in the case at hand, there was no evidence that any power had been abused to issue or maintain the warrants tapping the Degiorgio’s phones. “One must remember that the order issued against the plaintiff was due to threats from organised crime about a series of bombings which took place in Malta. Organisations which work underground and are not at all easy to gather evidence about.” Intercepting such a group’s communications was one of the most effective methods to infiltrate these dangerous organisations, said the court.

It also had to be borne in mind that Degiorgio was already well-known to the police at the time that the intercepts were authorised, the judges pointed out.

“Besides, since the handing down of the judgement which is being appealed, there was a very important development. The applicant admitted the charges and the Criminal Court condemned him to imprisonment for 40 years for the Caruana Galizia murder. Although he appealed, the Court of Criminal Appeal rejected the appeal and the sentence is now confirmed.”

It was also observed that although during Degiorgio’s interrogation in 2017, he was made aware that his two mobile phone lines were being monitored, he had not filed a complaint about it, as was his right at law.

In view of all this, the court said, it was unable to conclude that Degiorgio had suffered a breach of his right to private and family life due to some shortcoming in the law.

With regards to Degiorgio’s claim to have suffered a breach of his right to a fair trial through the use of the intercepted conversations, the court highlighted the fact that they had only been used as intelligence and not exhibited in court as evidence. This had not been contradicted, said the judges, observing that their role in the investigation had been so marginal that they had not even been exhibited during the compilation of evidence.

As the recordings themselves had not been exhibited, in September 2021, the Court of Criminal Appeal had expunged the testimony which made reference to them and had ordered Superintendent Keith Arnaud not to refer to them during the trial.

Degiorgio’s complaints about the prejudicial pretrial publicity caused by the media’s reporting on the intercepts had since been superseded by his admission of guilt and sentencing.

The fact that the intercepted conversations had not been used in the criminal proceedings in which he had eventually pleaded guilty belied his other complaint about the lack of judicial safeguards against abuse, which the court said, was “baseless.”

Also found to be unsustainable was his complaint about the absence of a judicial remedy under the Security Service Act, having considered the fact that the Court of Criminal Appeal had ordered the expunging of the references to the phone taps and the exhibition of the warrant authorising them, besides it not featuring in the compilation of evidence.

The judges ruled that the logical consequence of all this had to be the cancellation of the part of the judgement which awarded him €10,000 in compensation, as no fundamental right had been breached. 
Degiorgio was also ordered to suffer the costs of the case.