Convicted murderer claims fundamental rights violated when secret service tapped his phone

A convicted murderer awaiting trial for drug trafficking has claimed that his fundamental rights were breached when the secret service tapped phone calls he made from prison.

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 Maltese Security Service.

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 back 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 had indicated that several people, including some who were incarcerated in Malta, were acting as contacts for the operation to take place, with Muscat having been one of them.

The police investigation was helped by the secret service, which had been tapping telephone calls connected to the alleged drug importation plan.

The police had confirmed that the plot’s details had in fact emerged from intercepted calls, and the Security Service had also been pointing out people who could have been involved.

The police started to follow the movements of such persons, and this eventually led to the imported drugs being intercepted. 

During the course of 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.

Phone taps illegal

In a constitutional application signed by lawyers Franco Debono, Amadeus Cachia and Alex Scerri Herrera, Muscat claimed that the phone call interceptions by the secret service were illegal.

The interceptions, Muscat noted, were possible after a warrant was obtained from the interior minister, who was responsible for this at the time.

The act regulating the Security Service provides that all interceptions take place under absolute secrecy, Muscat said, and any controls on it are almost inexistent. This excludes scrutiny by the courts, even if such interceptions are to be used for criminal proceedings.

The application argued that – while the police should have at its disposal all the tools necessary to prevent crime – the legislator, through the Security Services Act, had chosen to give some of these tools to a secret institution which was not subject to judicial scrutiny. 

The fact that the warrant was issued on a request by the executive – the police – was in violation of Muscat’s fundamental human rights. The application argued that in the absence of judicial scrutiny, “one's mind cannot be put at rest that the evidence was collected in a transparent manner”.

It noted that Malta and the United Kingdom were the only EU member states where phone call interception warrants were issued by the interior minister, with no control from the judiciary.

Malta, moreover, did not have in place the safeguards the UK had, it added. The law also prohibited the court from intervening in the functions of the secret service.

Muscat’s lawyers argued that any interception which took place was therefore in breach of the fundamental right of their client to be guaranteed a fair trial.

The constitutional application also disputed the legality of a 2006 EU directive - which was transposed into Maltese law in 2008 - on the retention and processing of personal data obtained through communications operators.

A number of European Court of Justice judgments have declared the directive to be invalid and illegal, with several EU member states' constitutional courts having gone on to render null their own national legislation which transposed the directive.

Therefore, it argued, the relevant 2008 Maltese law on data processing in the electronic communications sector was also null.

This means that any data gathered in the manner outlined by this legislation could not be used in criminal proceedings because it was obtained illegally.

Muscat requested that the Civil Court’s First Hall, in its constitutional jurisdiction, declare that his fundamental rights for a fair trial were breached

He also asked that he be accorded all appropriate effective remedies in the circumstances.