The Malta Security Services chief is claiming that the tapping of George Degiorgio’s phone was “not illegally done” and that the use of unlawfully-obtained evidence does not automatically result in a breach of the accused’s fundamental right to a fair hearing.

This claim was made by the MSS chief when appealing a decision handed down by the First Hall, Civil Court in October awarding Degiorgio €10,000 in damages after it found that his right to privacy and family life were breached by a phone tap carried out under an expired warrant. 

Degiorgio, who together with his brother Alfred is currently awaiting trial for the 2017 murder of Daphne Caruana Galizia, had claimed that his fundamental rights were breached by such phone intercepts and also challenged the validity of Security Service Act.

But the MSS chief is standing firm by the phone tap at issue, and is now claiming that it was done “according to law”. He has now also hit back at all the claims made by Degiorgio in his own appeal against the judgment delivered by Mr Justice Toni Abela in October.

Citing ECHR case law, the MSS chief’s lawyer argued that the use of unlawfully obtained evidence at criminal proceedings did not automatically breach the accused’s right to a fair hearing.

Considerations must be made as to whether the defence was granted the opportunity to contest such evidence and whether proceedings as a whole were fair, he argued.

He added that, in this case, Degiorgio’s claim was unfounded since a decision by the Court of Criminal Appeal in September upheld a pre-trial plea by the Degiorgos’ lawyer and ordered the removal of all evidence referring to such intercepts at the upcoming trial. 

Once it is now certain that such intercepts are not going to be used at the trial, the need to ensure a fair hearing has more than been respected.

Degiorgio also claimed that pre-trial publicity also violated his right to a fair hearing by undermining his presumption of innocence. 

However, media reports did not describe Degiorgio as “guilty” but were based solely on testimony heard at the murder compilation, including references to the phone taps. 

Since unlawfully-obtained evidence does not automatically breach the accused’s right to a fair hearing, there could likewise be no such breach if the alleged unlawfully obtained phone taps were simply reported by the media.

There was “no concrete ground” to conclude that the jurors would be influenced by phone taps they never heard and never would hear and to which there was to be no reference at the trial. 

Moreover, the criminal appeal judgment had safeguarded even further Degiorgio’s rights and presumption of innocence by ordering the removal of every testimony that made reference to the contents of such intercepts. 

This decision was also extensively covered by the media and any prospective juror at the Degiorgios’ trial would presumably also know about this, argued lawyer Mark Simiana who filed the application on behalf of the MSS chief. 

Degiorgio had also challenged the constitutional validity of phone tapping laws by arguing that the authorisation and execution of intercepts were not subject to judicial scrutiny. 

But, in the first place, the right to a fair hearing as safeguarded under article 6 of the European Convention applied only in civil or criminal proceedings and certainly not at investigations stage where the intercepts came into play. 

The state’s faculty to carry out such phone taps was “justified and justifiable” in a democratic society for the purpose of curbing and suppressing serious crimes that could harm citizens, argued the MSS chief in his submissions to the Constitutional Court. 

Moreover, in terms of article 18 of the Security Service Act the authorities were excluded from producing evidence that a warrant had been issued or was to be issued in respect of particular individuals.

This was “an acceptable and necessary limitation” which in itself did not breach the person’s right to a fair hearing, the court was told. 

Without such limitation, it would be possible to summon the MSS chief or any of his officers as witnesses in any proceedings, including civil lawsuits between private individuals.

In actual fact, the MSS chief was summoned to testify at Degiorgio’s case before the first court, expressing reluctance to do so and to exhibit the contested warrant expressly because of this provision of law, pointed out the MSS lawyer. 

The functions of the MSS chief were covered by confidentiality and summoning him as a witness like any other ordinary witness annihilated the “usefulness and effectiveness of his work,” argued the lawyer.

That was why the legislator deemed it opportune to take measures to ensure that such information obtained by the MSS in the exercise of such duties is not made easily accessible in the public domain. 

Court pronouncements have rendered this limitation ineffective only in so far as concerns cases where proof of existence of the warrant is necessary to ensure the lawfulness of the State’s own actions, but no more. 

The first court declared that no one, not even the MSS chief, stands above the law, relying on a 2012 judgment declaring that a court has the power to order the production of the warrant authorising such phone taps to ascertain that the law has been observed. 

Although the court has the discretion to ensure full respect to the rule of law, that power of the court does not do away with the relative provision of the Security Service Act.

That power of the court to order presentation of the warrant applied in cases where this was “indispensable” to ensure that the law was respected and then all necessary measures were to be taken to preserve the confidentiality of such information.