George Degiorgio’s fundamental rights were not breached when his phone was tapped when police were monitoring his suspected involvement in a series of bombings months before the murder of Daphne Caruana Galizia, the Constitutional Court declared. 

The validity of that warrant, presented in court inside a sealed envelope by the Malta Security Services Chief, was a determining factor in reversing a previous court decision which concluded that Degiorgio’s right to protection of his private and family life had been breached. 

In 2021, a judgment handed down by the First Hall, Civil Court in its constitutional jurisdiction awarded Degiorgio €10,000 in damages for the breach. 

The decision was reversed on Monday through a judgment delivered by the Constitutional Court following three separate appeals filed by Degiorgio himself, the MSS chief as well as the Attorney General and the Police Commissioner. 

The awarded damages were also revoked. 

The proceedings concerned a breach of rights claim by Degiorgio who argued that criminal charges linking him to the journalist’s murder on October 16, 2017, stemmed from “unlawfully obtained evidence,” namely a phone intercept that was obtained under an expired warrant. 

When the case moved to the appeal stage, the Constitutional Court ordered the MSS chief to present that warrant targeting Degiorgio, together with any subsequent variations and renewals. 

That information would “ensure that the truth is known”, the court declared when issuing that order. 

The MSS chief complied and produced the documents in a sealed envelope on May 10, 2022. 

Both the MSS as well as the Police Commissioner and the Attorney General - subsequently replaced by the State Advocate - argued that the first court ought to have ordered that warrant to be presented in evidence. 

The first court had partly upheld Degiorgio’s claims after concluding that there was no evidence that the phone taps had been covered by a valid warrant. 

The appellants also argued that the first court was mistaken in saying that the phone taps breached Degiorgio’s rights because they were obtained for a different purpose to that for which the warrant was issued in the first place. 

During the proceedings, Superintendent Keith Arnaud testified that he had requested the MSS to monitor Degiorgio in February 2017 when both George and his brother Alfred were suspected of being involved in a series of bombing and shooting cases.

A warrant to intercept Degiorgio’s two phones was issued under the signature of the relative minister on February 20, 2017, for a term of six months. 

Another phone number was added to the warrant in March and the warrant itself was renewed in August 2017 for a further six months.

That evidence was not contested by Degiorgio, observed the court. 

Caruana Galizia murdered while warrant in force

Caruana Galizia was murdered when the warrant was still in force. 

“The evidence did not indicate that when the warrant was issued the authorities had any information that [Degiorgio] was planning Caruana Galizia’s murder,” said the judges. 

Although the intercepts were not done specifically about the journalist’s murder, that did not mean that any information gathered using that warrant could not be used as evidence against Degiorgio. 

This was not a case involving some “minor crime,” but a case of homicide which was so serious that it was in the general interest to solve. 

Degiorgio was well known to the police and was being investigated for other serious crimes. 

The warrant directly targeted him. 

That fact was not contested and even less so was evidence produced to show that such suspicions in his regard were frivolous.

The court, presided over by Chief Justice Mark Chetcuti and Justices Giannino Caruana Demajo and Anthony Ellul, declared that Degiorgio’s rights were not breached. 

Phone intercepts were one of the most effective methods used by those responsible for protecting the country’s security to infiltrate dangerous criminal organisations that operate underground.

Moreover, pending appeal proceedings there had been an important development since Degiorgio had registered an admission to the murder and was condemned to a 40-year jail term that was confirmed on appeal. 

The court, however, took on board the “very valid and relevant” observations made by the first court about the Security Service Act.

“Obviously where the power of the executive is exercised secretly, risks of abuse increase.” 

The MSS chief is nominated by the Prime Minister and phone taps are done under a ministerial warrant. 

There is no authority to scrutinise that such secret surveillance measures are carried out proportionately. 

Any review thereof does not eliminate the danger of abuse at the stage when the warrant is issued and surveillance effected, observed the judges, thus directing the court registrar to notify this judgment to the relative minister and the commissioner of laws. 

The legislation needs to be reviewed to ensure that it is in line with the European Convention on Human Rights provision on private and family life. 

Such review would ensure that work done to safeguard national security does not go up in smoke simply because the information gathered is not admissible in evidence in criminal proceedings. 

In Degiorgio’s case, there was no evidence of such abuse of power and the phone taps were only used as intelligence, said the court, also throwing out Degiorgio’s argument that he suffered pre-trial prejudicial publicity.