The government continues to ignore calls for the introduction of safeguards and judicial oversight on wiretapping in criminal investigations.
Contacted by the Times of Malta, a spokesperson for the home affairs ministry declined to clarify the government’s position on the matter.
Nor would they say whether the government would consider introducing a bill in parliament to amend the Security Services Act, responding to long-standing calls from several authorities for wiretapping in criminal investigations to be treated separately from national security investigations.
Last year, Mr Justice Toni Abela remarked during a court case that the Security Services Act should be revisited because the law permitting phone intercepts in criminal investigations lacked judicial safeguards and potentially breached human rights.
The issue was first raised by Franco Debono, who, as a member of parliament in 2011, urged the government to consider transferring the authority for Security Service interceptions in criminal investigations from the political authority of the minister to the investigative or judicial authority.
At that time the law was 15 years old. Thirteen years later, it remains unchanged.
Last month, Yvonne Farrugia, Malta’s European Public Prosecutor, called for the law’s revision in an interview with Times of Malta.
The law has also been criticised by GRECO, the Group of States against Corruption of the Council of Europe. GRECO has consistently urged the Maltese government to empower the judicial authority in authorising the use of special investigative techniques in the investigation of corruption offences.
In its second compliance report from the fifth evaluation round on Malta, published last March, GRECO noted that “no steps – not even a legal analysis of what would be a possible way forward – have been taken by the authorities”.
In response to Times of Malta, the government merely stated that it had taken note of GRECO’s remarks.
Citing national security reasons, the government refused to provide statistics on how many wiretapping warrants for criminal investigations had been signed by successive home affairs ministers since 2010.
Similar questions directed to the Justice Ministry were referred back to the Home Affairs Ministry.
Why does this matter?
GRECO is uncomfortable with ministers and executive members of the government overseeing the issue of warrants in criminal investigations.
“The influence of the executive on law enforcement authorities, particularly those deciding on the use of special investigation techniques for possible corruption offences, is a key factor in the inefficiency of the Maltese criminal justice system in effectively investigating allegations of possible involvement of PTEFs in corruption offences,” it stated. PTEFs are heads of government, ministers, and their advisers.
Sources explained: “How can members of the executive involved in criminal wrongdoing be caught when their colleagues control the process of warranting wiretapping? Would members of the executive grant warrants for phone intercepts of their colleagues?”
The revision of the wiretapping law is also necessary because it could potentially breach the fundamental rights of individuals whose communications were lawfully intercepted as part of investigations.
In June 2023, in its deliberations on a request made by Charles Muscat, known as ‘il-Pips’, a court held that the secret services law “would likely” breach his fundamental right to a fair hearing. Muscat was charged with setting up a drug trafficking racket from behind bars, and law enforcement used evidence gathered through phone intercepts to break the ring.
The court directed the criminal court to ensure that the accused’s fundamental rights would be safeguarded throughout the criminal process.
However, it noted that the court may not have been competent to decide on the constitutionality of the evidence intercepted during investigations carried out in 2001 under a warrant signed by the then home affairs minister.
This is why GRECO has recommended that any revisions to the law should make it “clear to all authorities involved in the investigation of corruption that the evidence lawfully obtained by such means is admissible in court”.