Planning Authority breached freedom of expression when it removed banners put up by Caruana Galizia heirs

The Planning Authority acted illegally when removing a banner placed on Old Bakery Street by the family of Daphne Caruana Galizia, the court has ruled.

In a judgment slamming the authority, the court ruled there was no basis at law to remove the banner and the action breached the family’s right to freedom of expression.

Caruana Galizia’s heirs were awarded €5,000 each in damages.

The First Hall of the Civil Court in its constitutional jurisdiction was critical of the manner in which the authority operated, highlighting the lack of a paper trail in the decision-making process.

The widower and three sons of assassinated journalist Daphne Caruana Galizia had filed a constitutional court case against the Planning Authority over the removal of banners placed on a private property in Old Bakery Street in Valletta in March and April of last year.

The family asked the constitutional court to declare the Planning Authority’s interpretation of the law and, separately, the removal of banners from a private property as unjustified interference, being disproportionate and not befitting a democratic society and, as such, in violation of Article 10 of the European Convention on Human Rights.

The case also called for effective and appropriate remedies to replace the banners as they were before the violation and for the authority pay fair compensation.

The case goes back to 31 March 2018 when Caruana Galizia’s husband and three sons hung a banner on a private property in Old Bakery Street saying: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions?”

A few days later, on 3 April, an order was affixed to the property for the banner to be removed due to an alleged breach of planning laws and, on 7 April, the banner was removed by persons then unknown.

At the time, the plaintiffs were not aware that the banner had actually been removed by the authorities and they had proceeded to file a police report for stolen property. Then, on 15 April, the plaintiffs hung another banner on the property’s façade, this one reading: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions? This is our second banner our first got stolen.”

This second banner was removed without warning less than 12 hours after it was hung, “presumably by the defendants [the Planning Authority],” the heirs argued.

The court, presided over by Madam Justice Lorraine Schembri Orland, who held her last sitting today before taking up her post at the European Court of Human Rights, noted that the enforcement report was treated as an urgent matter by the authority.

Charles Gafa, principal direct action officer at the PA, testified that the instructions to remove the banners came from his managers.

He then said decisions for direct action were taken by him after they would have been discussed with others.

Asked why the urgency in this case, he said that where billboards are concerned that have certain types of messages, the authority considers them as urgent. He said they do not look at the content, and that if it is illegal they remove it.

He said that for him, the billboard contained a message not an advert.

Asked who took the decision for direct action to be taken, he said that he took it after discussing the case with the Executive Chairman, Johann Buttigieg, and with his directors.

He confirmed that it was Buttigieg who gave him instructions regarding the billboard, and every billboard around Malta.

He had argued that many reports on the banner had come in.

However, the court did not agree with the Planning Authority’s interpretation of the law and how it acted.

The court argued that in the banner, there was no advert, and thus the Planning Authority had no legal right to remove the banner in the first place.

The court noted that enforcement was not carried out with the backing of the law, and was done through the incorrect application of laws. The court noted that this emerged from Johann Buttigieg’s testimony who said that a few months after he was appointed CEO, he gave a general direction that triggered an enforcement mechanism, and noted that this was not drafted in writing and that there are no guidelines regarding its interpretation. 

The court also noted that there were some specific meetings about this particular message indicating that this case was more specifically addressed by the authority.

The court concluded that the actions of the authority went further than the mandate given to the authority by the legislator, and resulted in the effective censorship of private citizens, and constituted as a violation of the plaintiffs’ rights.

The court also noted that vague and not proven references to reports and complaints on social media, or from unidentified members of the public, aren’t to be given any importance., and that even if there were complaints a democratic society is not led by mob rule, but on principles that give the highest protection to political expression.

The court found that there was no pressing social need for the removal of the banners.

As a remedy, the court ordered the authority to pay each one of the plaintiffs €5,000.