Drug trafficking suspects lose bid to have wiretaps declared in breach of rights

Two men charged with drug trafficking did not have their rights breached by a wiretapping warrant issued as established by law and within the stipulated time period, a Constitutional Court has ruled.

The court dismissed an appeal by Angelus Vella and Jason Said, ruling that there was no evidence of abuse of power when the warrant was issued against the plaintiffs in connection with alleged organised crime and drug trafficking.

 It held that the interference was not frivolous but necessary for the investigation and subsequent prosecution of the offences allegedly committed by Vella and Said.

Vella was stopped by the police at the Cottonera marina on June 6, 2005, as he disembarked from a cabin cruiser which the police had been looking for since that morning.

Separate police operations that day yielded more arrests as well as the discovery of around 8kg of suspected heroin that had allegedly come from the vessel.

Those arrests came following phone calls between the suspects which were intercepted by the Security Services.

Vella and Said were arraigned before the Court of Magistrates on July 1, 2005, accused of conspiring to deal in heroin, importing and trafficking the drug and its possession in circumstances denoting it was not for their personal use. Both men are pleading not guilty.

The Attorney General eventually issued a bill of indictment against the man.

The applicants filed constitutional proceedings on October 20, 2020 and claimed that their right to a fair hearing had been breached since the phone tapping was carried out on the strength of an executive order, and not a judicial one.

Under Maltese law, wiretaps are authorised by the relevant minister, not a judge or court.

They also argued that the retention of their phone data obtained from a service provider was illegal.

The applicants asked the court to declare that their right to respect for their private and family life had been breached 

The State Advocate, Police Commissioner, home affairs minister and Secret Service said the proceedings had to be analysed in their entirety to determine whether their right to a fair hearing had been breached. They also argued that the phone tapping took place in accordance with Maltese law. They also pleaded that under article 8 of the European Convention of Human Rights, phone tapping is allowed since it is needed to fight criminality.

The First Hall of the Civil Court in its constitutional jurisdiction dismissed the claim on January 30, 2024, ruling that the complaint had already been analysed and decided. It ruled that the phone tapping was subject to judicial scrutiny and there was no breach of the principle of equality of arms.

The plaintiffs filed an appeal on several grounds, including that the Security Service Act did not offer the necessary safeguards to protect a person’s fundamental rights. They also argued that Legal Notice 198 of 2008, Processing of Personal Data (Electronic Communications Sector) (Amendment) Regulations, 2008, was illegal and invalid and the use of their data was also in breach of their fundamental rights.

The Constitutional Court ruled that the state and authorities carried out the phone tapping in line with a clear provision of the law.

While generally the state cannot interfere with an individual's right to private and family life,  public authorities can interfere when it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The elements are cumulative and not alternative to one another, meaning that if there is one of the elements missing, then there is a breach.

In this case, the warrants were presented in both criminal and constitutional proceedings and confirmed on oath by Tonio Borg, who was the home affairs minister when they were issued.

The warrant was issued against the appellants in the context of a criminal organisation linked to drug trafficking and the invasion of their privacy was necessary for their investigation and eventual prosecution, the court said.

It ruled that the men did not suffer a breach because the phone tapping fell within the exceptions allowed by law.

The Constitutional Court was presided over by Chief Justice Mark Chetcuti and judges Giannino Caruana Demajo and Anthony Ellul.

Lawyer Maurizio Cordina appeared on behalf of the State Advocate.