Top army brass to take case to European Court of Human Rights

Lieutenant Colonel Mario Schembri and Colonel Pierre Vassallo will be taking their case to the European Court of Human Rights after the Constitutional Court has partially upheld their plea.

After occupying highly sensitive positions for more than a decade, in 2006 the two were suddenly removed from their responsibilities and told they would receive no further appointments in the AFM after the secret services classified their files as "not security cleared".

It is not clear why the two officers had been denied security clearance. Vassallo was last year promoted to Lieutenant Colonel and Colonel.

The two officers were police inspectors in the eighties under Police Commissioner Lawrence Pullicino and are believed to have reports filed against them by the disgraced police chief following personal clashes with him, though they were never dismissed from the corps or subjected to disciplinary procedures.

The two filed a constitutional case in 2007 to find out the reason why they did not receive their security clearance in 2006. But they were always told that such information was confidential and cannot be given.

Schembri and Vassallo claimed the actions of the National Security Authority, the Police Commissioner and the AFM Commandant breached their fundamental right to a fair hearing.

They had applied for a promotion within the AFM but their applications were dismissed as they did not have security clearance from the National Security Authority (NSA). Neither Schembri nor Vassallo had been given a reasons for the refusal of security clearance, nor the opportunity to defend themselves.

On 17 June last year, the Constitutional Court declared that the Prime Minister, the Minister for Justice and the Interior, the Attorney General and the head of the AFM were not responsible for the assessment for security clearance. Such assessment was carried out by the NSA and not by the head of the AFM.

While the lack of security clearance affected the officers' civil rights for their career prospects and their duties, their fundamental rights were not violated as the law did not exclude the officers' access to the courts, the Court had said. The officers appealed the court's decision.

In their appeal, the officers argued the National Security Authority should be considered a form of tribunal as its decisions were legally binding and can only be challenged in a court of law. A tribunal should be impartial and independent from the State's Executive pillar, however, the NSA is directly answerable to the Minister of Home Affairs.

The first court held the AFM Commandant was not involved in the process and should not have been part of the civil proceedings. The appeal argued the first court was mistaken in its conclusions as the AFM Commandant was the person who included security clearance as a prerequisite for promotions in certain ranks of the AFM.

Chief Justice Silvio Camilleri, Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri, partially upheld the appeal stating the AFM Commandant  as correctly included in the civil proceedings as he had an active part in the case, but confirmed the decision of the first court regarding the Prime Minister, the Minister for Justice and the Interior and the Attorney General.

Following the decision of their appeal, the Schembri and Vassallo will later this week, present their claim at the ECHR in Strasbourg.

Lawyers David Camilleri and Joseph Gatt appeared for the AFM officers.