Court declares governments legal phone tapping powers breach fundamental rights
Absence of safeguards against abuse when approving phone tapping requests has been found to have breached the fundamental rights of Joseph Lebrun who is accused of drug smuggling
The absence of safeguards against abuse when approving phone tapping requests has been found to have breached the fundamental rights of a man accused of drug smuggling.
This emerges from a judgement handed down earlier on Monday by Madam Justice Miriam Hayman, in the Constitutional case filed by alleged heroin smuggler, Joseph Lebrun.
It is the latest of a number of judgments in recent years, which express concern at the weak safeguards and oversight of the Malta Security Service (MSS).
How does the law regulate phone tapping?
MSS is regulated by the Security Service Act, which establishes that the Minister responsible for MSS is designated “from time to time” by the Prime Minister - the same Prime Minister who also personally appoints the Commissioner who is meant to “keep under review the exercise by the Minister of his powers” of issuing of warrants for the “entry and interference with property” and the interception of communications. The wording used in the law implies that the Minister can also arbitrarily exercise those powers, for which exercise he is accountable to precisely no one.
In fact, the Minister is legally immune in the event that abuses are found to have taken place.
Offences against the Security Services Act, that is to say, abusing the powers conferred by the Act, can only be committed by persons other than the minister.
The Act punishes “a person who intentionally intercepts or interferes with a communication in the course of its transmission...” with up to two years in prison and/or a €5,000 fine.
It however, excludes all guilt for that offence “if the communication is intercepted or interfered with in obedience to a warrant issued by the Minister”; or where there are “reasonable grounds” to believe the subject consented to interception; or if it was carried out “for purposes connected with the provision of postal, wireless telegraphy or telecommunication services or with the enforcement of any enactment relating to the use of those services.”
Effectively, the Minister and the Prime Minister when acting in his stead, can do no wrong in terms of this particular law.
The Lebrun case
Joseph Lebrun and two other persons were accused of being involved in a seaborne illegal drug smuggling operation in 2005. The police investigation had roped in MSS, which had been intercepting telephone calls regarding the alleged importation.
Police officers had testified 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 ruled that there was insufficient evidence to indict him, but 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 had subsequently focused on the Malta Security Services Act, which requires phone taps to be authorised by the minister responsible for MSS, or other Cabinet staff in emergencies. The law also provides that all such operations be covered by blanket secrecy.
What did the court say about this?
Lebrun’s lawyers had argued that Malta and, at the time, the UK, were the only countries in the EU to give politicians the power to authorise call interceptions, adding that the safeguards against abuse that were postulated under English law are completely absent in their Maltese equivalent.
It was argued that the Security Services Act had given this power “to secret institutions, beyond the reach of judicial scrutiny and therefore, in violation of fundamental human rights.”
In the judgement handed down today, the Court observed that an identical complaint had been made in the similar case filed by Charles Steven Muscat, which had been decided in June 2023, in which it was held that important safeguards against abuse were missing from the law, which does not envisage an independent body to oversee the use of wiretap warrants.
In her decision, Madam Justice Hayman adopted a characteristically unambiguous position on the matter.
“The court embraces these teachings and makes them its own. The co-dependency and the ties of every appointment by the executive [arm of government] smacks of incestuousness,” said the judge, going on to say, however, that there was no evidence to show that this power had been abused in Lebrun’s case.
While declaring that Lebrun had suffered a breach of his fundamental right to a fair hearing, but not of his rights to private and family life, home and correspondence, or his right to an effective remedy before a national authority, the court said that this declaration, when taken together with the Court of Criminal Appeal’s directions, was a sufficient remedy in these proceedings.
The court did not order the intercepted communications be expunged from the acts of the criminal proceedings, pointing out that this request had to be made to the competent court of criminal judicature.
“In the opinion of the court, no further remedies, including monetary ones, are opportune in the circumstances,” concluded the judgement.
Joseph Lebrun was assisted by lawyers Jose' Herrera, Franco Debono, David Camilleri and Alex Scerri Herrera.
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