Journalists should be allowed to conduct interviews, take photos and record video inside prison, a court has ruled in a landmark judgment that could open up public accountability of what goes on behind prison doors.

The court declared that the “law cannot be used to create a barrier between journalists and the public,” and upheld a claim by blogger Manuel Delia that his fundamental rights were breached when he was denied free access to prison and detention centres.

Delia filed the court application in September 2020 after he sought permission to visit the Corradino prison and detention centres, after Times of Malta reported that detainees were manhandled by prison warders and hosed down “like animals”.  

Before visiting the Corradino prison on September 1, 2020, Delia had asked to be granted access under reasonable conditions to those areas where migrants were being detained and also to be allowed to take photos and to check sleeping and recreational facilities, toilets and showers as well as the prison kitchen.

However, his visit - after signing a media protocol document -  was carried out under surveillance and was limited to the prison kitchen.

He was not allowed to visit certain divisions, nor granted access to the toilets, showers, cells and recreational areas.

Delia never received a reply to his request to visit detention centres.

Court: Days of 'I am the king' are over

When testifying in the proceedings, former Prison Director Alex Dalli had defended his decision to give the journalist that controlled tour saying that behind the Corradino walls “the buck stops with me.”

However, when delivering judgment on Monday, the First Hall, Civil Court in its constitutional jurisdiction observed that unfortunately there are people who cannot seem to understand that the days of “je suis le roi, je suis la loi” [‘I am the king, I am the law’] are over.

Dalli had argued that Delia did not fall within the definition of a list of special individuals who could request access to any part of the prison facilities.

Another senior prison inspector had also testified that journalists did not enjoy such privileged access, which was reserved to a special list of individuals in terms of the Prisons Act.

The court said that while it believed these officials were operating in good faith, it did not agree with such a decision based on a person’s judgment or a law that was outdated, preceding judgments delivered both by Maltese and foreign courts on such matters.

“Restrictions on freedom of expression should be dictated by common sense and reason” so as to avoid unnecessary tampering with such a right, observed Mr Justice Toni Abela.

The protocol document Delia was asked to sign had a “suffocating” and "chilling" effect on journalists wishing to report on the prison, the court said.

It only listed what the journalist “could not do”, dictated how interviews and the prison tour would be carried out and stipulated that the visit could be terminated at any time. 

Photos, interviews and videos should be allowed as long as the privacy of inmates or detainees is respected and there were no serious and compelling reasons against doing so.

What went on inside such facilities was doubtlessly a matter of public interest and Delia, spurred by media reports, had wanted to investigate to find out what was truly happening in there and whether those reports were factually correct.

Yet, to date he still had not been granted access to detention centres and no convincing explanation had been put forward for his “controlled” access to CCF, the court said.

“Authorities should not shut their doors to journalists,” went on the court, observing that such an attitude only serves to breed or strengthen doubts that some cause for investigation truly exists.

Such attitude by the state is often not to cover up its tracks (faħam miblul) but out of pique in respect of some particular journalist.

On the other hand, journalists must act objectively and in good faith.

When all was considered, the court concluded that Delia’s right to freedom of expression was breached.

The journalist had not requested a pecuniary remedy but rather one that would effectively enable him to carry out his journalistic work, observed the judge.

The court therefore ordered the prison director and the Head of Detention Centres to grant Delia access and to allow him to take photos whilst respecting the privacy of inmates and detainees.

However “for obvious reasons” the applicant was not to have access to those divisions where persons linked to the Daphne Caruana Galizia assassination were being detained.

The Home Affairs Minister, the permanent secretary and the State Advocate were declared non-suited.

Lawyers Paul Borg Olivier and Eve Borg Costanzi assisted the applicant.