Phone intercepts used to catch a suspected drug smuggler breached the suspect’s right to a fair hearing because a minister authorised them, a constitutional court has decreed.
The judgement adds further pressure on legislators to revise Malta’s wiretapping laws, which require such intercepts to be approved by a minister, rather than a court. A judge had called for those laws to be rewritten in a similar case in 2023.
Joseph Lebrun has now also successfully challenged that wiretapping system, as denoted in the Malta Security Services Act.
Lebrun, a 65-year-old Marsascala resident, was charged in September 2005 with allegedly conspiring with others to import 7kg of heroin.
Prosecutors presented transcripts of phone recordings as evidence against him.
But Lebrun’s lawyers challenged the system, arguing that since such phone taps were not subject to scrutiny by an independent judicial authority, the integrity of the process was doubtful.
They also asked the court to declare illegal the retention of data by service providers and its access and use by the police.
Where did it all start?
In 2005, the Drug Squad received information about Lebrun’s suspected involvement in a seaborne operation whereby a large quantity of drugs was to be smuggled into Malta for trafficking.
In May of that year, the then-minister responsible for Home Affairs, Tonio Borg, authorised phone taps in respect of Lebrun.
Those intercepts, carried out in a joint investigation between the Malta Security Service and the police, led to Lebrun’s and prosecution.
Police officers testified that they had relied on information obtained through those wiretaps to intercept the heroin shipment and identify the people responsible for it.
Suspects included Lebrun, who was arrested on September 6, 2005 and charged before a Magistrates’ Court.
Transcripts of those phone taps were produced in evidence.
In November 2005, the court discharged Lebrun on the basis of lack of sufficient evidence. A fortnight later he was re-arrested and charged again.
But his criminal case came to a standstill while Lebrun’s lawyers contested other issues before the constitutional courts. Those proceedings brought about amendments to the law.
Once the constitutional claims had been dealt with, Lebrun’s criminal case resumed and a bill of indictment was issued in 2014.
Phone intercepts law challenged six years ago
In 2018, Lebrun’s lawyers raised other breach of rights claims before the First Hall, Civil Court in its constitutional jurisdiction.
They pointed out that the Malta Security Services Act allows phone taps under the authorisation of the responsible minister, the minister’s permanent secretary or the Cabinet secretary under ministerial direction in case of urgency.
Moreover, all this is done under a blanket of “absolute secrecy”, with minimal controls over the workings of the security services.
Even when phone intercepts are produced as evidence in court, the way in which they were obtained is not subject to judicial scrutiny.
The Act itself prohibited the courts from interfering in the exercise of the MSS’ powers.
Moreover, Lebrun’s lawyers argued that the retention of such data by service providers and its use by the police or other entities was also illegal.
The Attorney General, the Police Commissioner, the Minister for Home Affairs and National Security and the Secret Services chief, as respondents, countered that the European Convention allowed such phone taps as a “special” tool in investigating and fighting serious crimes.
Our legislative framework laid down safeguards and clear parameters for obtaining such intercepts and all was done according to law.
This was also necessary in a democratic society, argued the respondents.
No peace of mind that data was gathered in a transparent manner
When handing down judgment, Madam Justice Miriam Hayman limitedly upheld Lebrun’s claim, declaring that his right to a fair hearing was breached since the phone taps were done under a warrant issued by the Executive, namely the Minister, rather than a judicial authority.
This meant that there was no judicial scrutiny and consequently the applicant had no peace of mind that the data produced in evidence had been obtained in a transparent manner, the court said.
The court rejected his claim with respect to the retention of data by service providers.
In its judgement, the court made reference to similar claims raised in breach of rights cases filed by George Degiorgio and Charles Steven Muscat, taking on board the courts’ reasoning in those proceedings.
Lawyers Jose’ Herrera, Franco Debono, Alex Scerri Herrera, David Camilleri and Marion Camilleri assisted the applicant.
The judgement traces familiar ground for two of Lebrun’s lawyers.
Debono had suggested revising wiretapping laws to take politicians out of the equation more than a decade ago in 2012, when he was a PN MP.
And in 2014, Herrera - at the time a junior minister - had publicly said wiretaps should be the remit of the judiciary, not ministers.