Legality of Malta Security Services’ phone taps challenged in court

Lawyers for alleged drug smuggler Joseph Lebrun yesterday attacked the legality of using phone taps by the Malta Security Services in criminal cases and the storage of communications data by the authorities.

In a Constitutional application filed against the Attorney General, the Commissioner of Police, the Minister of the Interior and National Security and the Head of the Security Services which is expected to have a ripple effect on a multitude of other cases, lawyers Franco Debono, Amadeus Cachia and Alex Scerri Herrera posited that the telephone intercepts used by the police breached Lebrun’s fundamental right to a fair hearing.

As the intercepts were made at the request of the police and not a judicial authority, the absence of judicial scrutiny caused doubts as to the integrity of the process, the lawyers said. They also asked the court to declare that the holding of service provider data and all access and use by the police is illegal.

In 2005, Lebrun and two other persons were allegedly involved in a seaborne illegal drug smuggling operation. The police investigation had been carried out hand in hand with the Security Services who had been intercepting telephone calls regarding the alleged importation. Police officers had testified saying that the operation, in which the heroin consignment was successfully intercepted, was built around the information gleaned from these calls.

Court proceedings against Lebrun had collapsed in late 2005 after the court of magistrates held there was insufficient evidence to indict him and were revived by the Attorney General who requested Lebrun’s re-arrest in December that year. After a Constitutional battle which led to a change in the law, a bill of indictment was finally issued in 2014.

Lebrun’s lawyers continue to fight tooth and nail, as their court application filed yesterday demonstrates. In it, they point out that the Malta Security Services Act allows phone taps to be authorised by the Minister responsible for MSS, or other Cabinet staff in emergencies. In addition to this the Act provides that all such operations be covered by blanket secrecy.

The lawyers highlighted the fact that in the EU it was only Malta and the UK which gave politicians the right to authorise phone taps, “although in English law safeguards were postulated which in their Maltese equivalent were completely ignored.”

“Although it is a cardinal principle that the police should have the necessary tools to prevent criminal acts, the legislator, by promulgating the Security Services Act, chose to give part of the tools to secret institutions outside of judicial scrutiny and therefore in violation of fundamental human rights,” argued Lebrun’s defence.

This also impinged on the right to equality of arms in judicial proceedings.

The Act was further criticised as it prohibited the Courts from intervening in the exercise of MSS’ powers.

Quoting from judgments of the European Court of Human Rights, the lawyers submitted that, “there is the risk of undermining or even destroying democracy on the grounds of defending it.”

The same court had also held the rule of law implied that interference by the executive authorities with an individual’s rights should be subject to an effective control – normally the judiciary – as a guarantee of independence, impartiality and proper procedure.

Lebrun’s defence finally also claimed that data generated and processed under these powers was being stored illegally. The Maltese authorities stored communications and service provider data under EC Directive 2006/24, which was transposed into Maltese legislation by Legal Notice 198 of 2008. But subsequently although several judgments of the ECHR have declared the Directive as invalid and illegal, the Maltese legal notice remains in effect.

This means that all storage of service provider data and its use by the authorities and the Police is illegal and in breach of the fundamental human rights of the applicants and cannot be used as evidence, argued the lawyers.

The court was asked to provide a suitable remedy.