The Malta Independent 22 September 2020, Tuesday

Court slams PA for breaching freedom of expression when removing Caruana Galizia banner

Tuesday, 16 July 2019, 13:18 Last update: about 2 years ago

The Planning Authority acted illegally when removing a banner placed on Old Bakery Street by the family of Daphne Caruana Galizia, having no basis at law to remove it and breaching their rights to freedom of expression, the court has ruled.

The First Hall of the Civil Court in its Constitutional Jurisdiction, in a judgement slamming the way the authority operated, highlighted the lack of a paper-trail in the decision making process.

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The widower and three sons of assassinated journalist Daphne Caruana Galizia had filed a constitutional court case against the Planning Authority over the removal of banners placed on a private property in Old Bakery Street in Valletta in March and April.

They asked the Constitutional Court to declare the Planning Authority’s interpretation of the law and, separately, the removal of banners from a private property as unjustified interference, being disproportionate and not befitting a democratic society and, as such, in violation of Article 10 of the European Convention on Human Rights. The case also called for effective and appropriate remedies to replace the banners as they were before the violation and for the Authority pay fair compensation.

The case went on to explain how, on 31 March, Daphne Caruana Galizia’s heirs – her husband and three sons – hung a banner on a private property in Old Bakery Street saying: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions?” A few days later, on 3 April, an order was affixed to the property for the banner to be removed due to an alleged breach of planning laws and, on 7 April, the banner was removed by persons then unknown.

At the time, the case explains, the plaintiffs were not aware that the banner had actually been removed by the authorities and they had proceeded to file a police report for stolen property. Then, on 15 April, the plaintiffs hung another banner on the property’s façade, this one reading: “Why aren’t Keith Schembri and Konrad Mizzi in prison, Police Commissioner? Why isn’t your wife being investigated by the police, Joseph Muscat? Who paid for Daphne Caruana Galizia to be blown up after she asked these questions? This is our second banner our first got stolen.”

This second banner was removed without warning less than 12 hours after it was hung, “presumably by the defendants [the Planning Authority],” the heirs argued.

The court, presided over by Madam Justice Lorraine Schembri Orland, who held her last sitting today before taking up her post at the European Court of Human rights to which she was elected by the Council of Europe,

The court noted that the enforcement report was treated as an urgent matter by the authority.

Charles Gafa, Principal Direct Action Officer testified.  Regarding the enforcement action report, he first said that the instructions to remove the banners came from the managers. Then he said that he takes decisions for direct action after they would have discussed it and it is agreed that direct action will be taken. Asked why there was urgency in this case, he said that where billboards are concerned that have certain types of messages, the authority considers them as urgent. He said that they don’t look at the content, and that if it is illegal they remove it.

He said that for him, the billboard contained a message not an advert.

Asked who took the decision for direct action to be taken, he said that he took it after discussing the case with the Executive Chairman ( Johann Buttigieg) and with his directors.

He confirmed that it was Buttigieg who gave him instructions regarding the billboard, and every billboard around Malta.

He had argued that many reports on the banner had come in.

The court did not agree with the Planning Authority’s interpretation of the law and how it acted. The court argued that in the banner, there was no advert, and thus the Planning Authority had no legal right to remove the banner in the first place.

The court notes that enforcement was not carried out with the backing of the law, and was done through the incorrect application of laws. The court noted that this emerges from Johann buttigieg’s testimony who said that a few months after he was appointed CEO, he gave a general direction that triggered an enforcement mechanism, and noted that this was not drafted in writing and that there are no guidelines regarding its interpretation.

The court also noted that there were some specific meetings about this particular message indicating that this case was more specifically addressed by the authority.

The court added that the authority’s officials moved according the CEO’s order and for them it had the strength of  alaw. It also noted that, as there is no paper trail and not even guidelines regarding the interpretations imposed by the CEO, the executive order in itself does not satisfy the pre-requisites of transparency and accountability, and even less so for clarity and predictability, adding that no citizen can logically arrive at a conclusion that a banner with a political message in the way as was described be an advert.

The court concluded that the actions of the authority went further than the mandate given to the authority by the legislator, and resulted in the effective censorship of private citizens, and constitutes as a violation of the plaintiffs rights.

The court quoted from a number of international judgements regarding freedom of expression, and said that, resulting from considerations of this Court, it is clear that the Authority acted without justification, in an arbitrary and abusive way.

Among other European Court judgements considered, the Maltese court took note of Savva Terentyev v Russia,  and quoted from that judgement: "The general principles for assessing whether an interference with the exercise of the right to freedom of expression has been necessary in a democratic society are well-settled in the Court's case-law and were reiterated in a number of cases. The Court has stated, in particular, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfillment. Subject to Article 10, 2, it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society"

The Maltese court also quoted other European Court judgements which read: "Moreover, there is little scope under Article 10, 2 of the Convention for restrictions on political speech or on debate on questions of public interest. It is the Court's consistent approach to require very strong reasons for justifying restrictions on such debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned."

The court also noted that vague and not proven references to reports and complaints on social media, or from unidentified members of the public, aren’t to be given any importance, and that even if there were complaints a democratic society is not led by mob rule, but on principles that give the highest protection to political expression. The court found that there was no pressing social need for the removal of the banners.

As a remedy, the court ordered the authority to pay each one of the plaintiffs €5,000.

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