A 30-year-old law, allowing telephone intercepts by the security services, should be revisited, the court said on Thursday, pointing out that it likely breaches the fundamental rights of a man awaiting trial over a drug conspiracy coordinated by prison inmates 22 years ago. 

The case revolves around Charles Steven Muscat, known as 'il-Pips', who is one of four inmates allegedly involved in a drug-trafficking racket planned and set up from within the confines of the Corradino Correctional Facility back in 2001.

Muscat, along with Emanuel Camilleri, known as 'Leli l-Bully', Alfred Bugeja, known as 'il-Porporina' and Mario Camilleri, 'l-Imnieħru', had allegedly plotted with close acquaintances outside prison walls to import a considerable amount of drugs from the Netherlands. 

Intercepted calls carried out by the security services on the strength of a warrant signed by the Home Affairs Minister in terms of law, provided investigators with crucial information to crack down on the plot which was ultimately busted. 

Confidential information had sparked a joint operation between the Maltese police and their Italian counterparts, leading to tracking down the planned passage of some two kilograms of cocaine, one kilo of heroin and some 2000 ecstasy pills from the Netherlands to Sicily and finally to Malta. 

Surveillance of a number of suspects finally led to the interception of the drug consignment and criminal charges against 19 persons allegedly involved in the plot, including Muscat. 

While awaiting trial and 17 years after that alleged plot, Muscat’s lawyers set up a twofold challenge against the constitutional validity of those telephone intercepts.

They argued that phone tapping was effected under a warrant issued by the minister and therefore, under an executive authority without any judicial scrutiny. 

That meant there was no peace of mind that the information was gathered in a transparent manner. 

They also argued that since that data was processed in terms of the EU Data Retention Directive, which had been declared illegal by numerous ECHR judgments, that information retained by service providers and used by the police or any other entity, was likewise null. 

When delivering judgment on Thursday, the First Hall, Civil Court in its constitutional jurisdiction, presided over by Mr Justice Toni Abela, observed that in principle, the ECHR upheld the need for such phone intercepts. 

Interference was the exception, not the rule

Citing Klass and Others vs Germany, the court “has, therefore, to accept that the existence of some legislation granting powers of secret surveillance over the mail, post or telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.”

Interference was the exception, not the rule. And such interference was only legitimate if done according to law and in line with specific interests.

Turning to the case, Muscat was allegedly conspiring from prison to import a large amount of heroin that was ultimately destined for trafficking on Malta’s streets, most of it ultimately to be used by youths. 

The court had to take note of the devastating effect this would have on Maltese society, when assessing the balance between the fundamental rights of the individual and those of society in general. 

Citing case law, Judge Abela observed that a balance had to be struck between “informational autonomy” but also “the need of the State to protect itself and its citizens and by definition democracy”.

In this case, Muscat no doubt took risks while in jail, knowing that calls were tapped and if he was not aware, he could easily have checked with his lawyers. 

Therefore, his right to private family life and communication was not breached. 

As for the fact that intercepts were obtained under a ministerial warrant without judicial scrutiny, the court observed that the secret services law was characterised by secrecy in the way the data was obtained and used. 

Without such secrecy, the law could not bear fruit in the fight against organised crime. 

Although the law prohibited judicial scrutiny, that rule was not “sacrosanct". 

However, the law did not provide for safeguards.

The Prime Minister appointed both the minister under whose hand the phone tapping warrant is issued and also the Secret Services chief, who in turn appointed the members under his watch. 

The court described this as “institutional incest” and declared that it would be appropriate for the legislator to revisit the law which was enacted 30 years ago so as to bring it up to date with the times. 

When all was considered, the court held that the secret services law would likely breach Muscat’s fundamental right to a fair hearing and thus directed the Criminal Court to ensure that the accused’s fundamental rights would be safeguarded throughout the criminal process. 

The court did not order the removal of the intercepts, saying that the competence to do that was vested in the Criminal Court. Nor did it order compensation in favour of the applicant. 

The court rejected the Attorney General’s plea that Muscat had not exhausted ordinary remedies.

Although the Criminal Court was competent to decide upon the admissibility of evidence, that court was not competent to decide on the constitutionality of such evidence.

“That court will probably declare the evidence admissible because [the Secret Services Act] permits it and the formality under that law was observed. But it was improbable if not impossible [for that court] to decide whether that law breached fundamental human rights,” Mr Justice Abela said. 

Lawyers Franco Debono, Marion Camilleri and Francesca Zarb assisted the applicant.