Convicted murderer claims breach of fundamental rights

A convicted murderer awaiting trial for drug trafficking has claimed that his fundamental rights were breached when the Secret Service tapped phone calls he had made from prison.

Charles Steven Muscat, known as “il-Pips”, had been, along with 18 others, accused with conspiracy to traffic drugs based on phone calls intercepted by the Maltese Secret Service.

Muscat gained notoriety during the 1990s, eventually being sentenced to 25 years imprisonment in 1999 for a cocaine-fuelled double homicide.

He was subsequently granted early release in 2011 for good behaviour.

This case in question, however, dates back to December 2001, when Drug Squad police uncovered an illicit operation where arrangements were being made to import a considerable amount of cocaine and cannabis from the Netherlands. The police investigation had indicated that several people, including some who were incarcerated in Malta, were acting as contacts for the operation to take place, with Muscat having been one of them.

The police investigation was being undertaken in close cooperation with the Secret Service, who had been tapping telephone calls connected to the alleged plan to import the drugs. The police had confirmed that the plot’s details had in fact emerged from intercepted calls, and the Secret Service had also been pointing out people who could have been involved in the plan.

The police had started to follow the movements of such persons, and this eventually led to the imported drugs being intercepted.

During the course of the investigation, it emerged that, as the illegal importation plan was being hatched, Muscat, who at the time was an inmate at Corradino prison, had been in communication with certain people for them to be supplied with large quantities of cocaine and cannabis, with the aim of importing the drugs to Malta and trafficking them.

Muscat was subsequently arraigned in court on charges relating to conspiracy, importation, trafficking and possession of drugs.

In a constitutional application signed by Lawyers Franco Debono and Amadeus Cachia, Muscat is claiming that the phone call interceptions by the Secret Service, which eventually led to the case brought against him, were illegal.

The interceptions, Muscat notes in the application, were undertaken based on a mandate from the Interior Minister, who at the time was responsible for this.

The act regulating the Secret Services provides that all interceptions take place under absolute secrecy, Muscat said, and any controls on it are almost inexistent, also excluding any scrutiny by the courts, even if such interceptions are to be used for criminal proceedings.

The application goes on to argue that - while the police should have at its disposal all the tools necessary to prevent crimes - the legislator, through the Secret Services act, had chosen to give some of these tools to a secret institution which was not subject to any judicial scrutiny.

The fact that the mandate was issued on a request by the executive - the police - is in violation for fundamental human rights, it claims - because, in the absence of judicial scrutiny, one’s mind cannot be at rest that the evidence was collected in a transparent manner.

It noted that Malta and the United Kingdom were the only EU member states where phone call interception mandates are issued by the Interior Minister, with no control from the judiciary. Malta, moreover, did not have in place the safeguards the UK had, it said.

In addition, it makes the argument that the Secret Services act is also abusive since it prohibits the court from intervening in the powers bestowed on the Service by the act.

Any interception which took place is therefore in breach of the fundamental right of Muscat, the application claims, going on to refer to various European Court of Human Rights judgements which underline the judiciary’s role in offering guarantees of independence in an investigation, and the risk of secret surveillance undermining democracy.

The constitutional application also disputes the legality of a 2006 EU directive - which was transposed to Maltese law in 2008 - on the retention and processing of personal data obtained through communications operators.

A number of European Court of Justice judgements, the application maintains, have declared that the directive is invalid and illegal, with several EU member states’ constitutional courts having gone on to render null their own national legislation which transposed the directive.

Therefore, it argues, the relevant 2008 Maltese law on data processing in the electronic communications sector is also null.

This means, the application puts claims, that any retention of data from electronic communication services which are accessible to the public, and any access of such data by the police, is illegal and abusive, and any data gathered in this regard cannot be used in criminal proceedings, as it was obtained illegally.

In light of these argument, Muscat is requesting that the Civil Court’s First Hall, in its constitutional jurisdiction, declare that his fundamental rights for a fair trial were breached, since the call interceptions were undertaken based on a mandate from the executive and not from a judicial authority.

Because of this, Muscat claims, judicial scrutiny was absent, and there was no peace of mind that the evidence from the calls was collected in a transparent manner.

He is also requesting the court to declare that his right for a fair hearing was furthermore breached because - he claims - the keeping of data by telecommunication providers, and allowing the police or any other entity to access and use that data, is illegal.

Finally, he requested that he be accorded all appropriate effective remedies in the circumstances.