One of the men charged with the murder of journalist Daphne Caruana Galizia, George Degiorgio, has filed a Constitutional case, arguing that incriminating phone intercepts used against him by the police which were never exhibited by the prosecution, were obtained illegally and that that consequently, all reference to them should be struck from the records of the case.
During the compilation of evidence against Degiorgio, his brother and Vincent Muscat, the police had testified to how they had used telephone intercepts to monitor conversations, triggering signals and even the movement of the bomb itself. But none of the recordings of the conversations or their transcripts have been exhibited in evidence, and neither had the Head of the Security Services been summoned to testify about them.
Lawyer William Cuschieri, appearing for George Degiorgio, argued that this and the fact that no warrant from the minister responsible for the security services, authorising the intercepts, had been exhibited either, casts serious doubt upon their legality.
Despite the fact that the compilation of evidence against the men had now ended and a bill of indictment had been issued, the police had failed to prove the veracity of what was being said about the intercepts, whether they had actually happened and whether they had been made legally. “This is being said also because the Commissioner of Police is obliged to enforce the law and prevent the commission of crimes, not commit crimes or break the law himself.”
In the application filed earlier today, Cuschieri said that this was why the Degiorgios had filed a judicial protest in August, referring to case law which had established that when using such intercepts, the court would be deprived a priori of oversight of the evidence. Doing so prevented the guarantee of protection of the interests of all the parties involved in a transparent manner.
In the 2011 case Attorney General vs Head of the Security Services et, it was emphasised that not only the transcripts of the intercepts must be exhibited but also the warrant authorising it in the first place. Failure to do so meant that the court was unable to say whether the intercept was legal or not, the court had ruled, saying that “it is axiomatic that in a rule of law, nobody is above the law.”
Now that the Attorney General had filed the bill of indictment, the compilation of evidence was closed and “it is understood that despite the maximal importance of this evidence, the Attorney General and the Commissioner of Police have chosen not to exhibit this evidence,” this meant that either it was not true that the intercepts were made, or if they were in fact made they were illegal.
If they were performed illegally, they were not being made to investigate a crime that hadn’t been carried out yet, argued the lawyer. If they were made as part of another investigation, they cannot be used as evidence in this case, he said. If the intercepts were made illegally, they were also illegally passed on by the Head of the Security Services to the Commissioner of Police, added Cuschieri.
In addition, there was an “interest to reveal in an illegal and arbitrary manner a small and selective part of these intercepts,” he said, and to keep under wraps the full content of the wiretaps which were being made by the defendants.
This complaint had been the subject of the judicial protest filed by the Degiorgio brothers, which had been countered by the defendants saying that if the plaintiffs had an objection to the intercepts, they should raise the issue before the Criminal Court and not present civil or constitutional proceedings. “So whilst the defendants did not deny that the evidence was obtained illegally, they seem to be giving ‘advice’ to the plaintiffs as to what type of judicial procedures should be taken. This instead of just showing them…that every aspect of the investigation was carried out legally and not by breaking the law!”
It was shameful, reads the application, that some of the highest law enforcement authorities of the country lacked the strength to even deny the allegation, much less exhibit the warrants that should have been obtained before tapping the accused men’s phones.
All this meant that their fundamental human right to respect for private and family life, home and correspondence, under Article 8 of the European Convention on Human Rights was being breached.
Subsidiary to this, it was argued that the law in Malta did not clearly specify what discretion the Head of the Security Services had to make these interceptions and that, as a consequence, the law itself breached their fundamental human rights.
The widespread media coverage of the wiretaps, reported as if they had been carried out legally by the police had breached the presumption of innocence, argued their lawyer.
In concluding, he asked the court to declare that there was a breach of the plaintiffs’ fundamental rights and to order the striking off of all the illegally obtained evidence as well as that obtained as a consequence and to award compensation.