The Malta Independent 15 July 2020, Wednesday

Court throws out police commissioner attempt to silence media

Monday, 13 January 2020, 13:32 Last update: about 7 months ago

A court has thrown out an attempt by the Commissioner of the Police to silence the media over articles relating to the treatment of the suspects in the hijacking of the tanker El Hiblu -1.

The El Hiblu 1 was hijacked by a group of teenagers in 2019 who diverted the ship to Malta to avoid their forced return to Libya, where they faced almost certain death. The three teenagers were later accused of an act of terrorism when they forced the ship to change course to Malta had told the police that they “would rather die in the Mediterranean than go back to Libya”.

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In a court application filed on 20 November 2019, the Commissioner of Police had referred to three articles: one published in the MaltaToday, which referred to conversations with the accused and representatives of the Attorney General’s Office, the Office of the Prime Minister and the Armed Forces of Malta; another article published in the Times of Malta, which quotes a group of NGOs as saying that they acted to save their lives and that of other migrants aboard the vessel and a third article, published by Newsbook on which refers to the requests made by the accused to allow interpreters of their choice stating that “prison authorities have denied entry to interpreters who accompanied the defence lawyers on visits to the three teenagers”.

The articles were attacked on the basis of article 517 of the criminal code, which prohibits the publication of certain criminal proceedings.

Magistrate Nadine Lia, in her decision on the case, noted that the MaltaToday article amounted to an opinion piece by Amnesty International. “In the course of formulating the opinion piece, at page 3 of the same article reference is also made to the fact that this case was discussed with ‘representatives of the Attorney General Office, the Office of the Prime Minister, and the Armed Forces of Malta (AFM).’

In the article published, a rendition of facts and a timeline is presented on account of the interview carried out by Amnesty International ‘according to the information gathered by Amnesty International” which apart from speaking directly to the accused included also ‘representatives of the Attorney General Office, the Office of the Prime Minister, and the Armed Forces of Malta (AFM).’”

Of the Times of Malta’s article, the court noted that the article quotes NGOs as stating that “they acted in this manner to save their lives and that of other migrants aboard the vessel, which arrived in Malta on March 28”.

The court observed that the Newsbook article, “is based on reporting of matters pronounced in open court.”

There was no wrongdoing by any of the online news portals, said the magistrate.

“It is clear from these articles that information is presented in the names of NGOs who are not parties or privy to the act of proceedings or to the full statement of facts. The opinions put forward lay down the facts as determined by the same groups. The groups putting forward these opinions are not parties to the proceedings, have no access to the facts or acts of proceedings and in the minutes of proceedings have never registered their presence.” The court could only speculate on what basis they are presenting these opinions as facts, it said.

The Newsbook article concerning the Prison authorities stated that the point that the “purpose of the application is to give a platform to the prison authorities, namely the prison Director Alexander Dalli and Helenio Galea to justify their actions on restricting lawyers access to the accused and rebut the reporting of the lawyers’ statements in court on this matter.”

Having heard the witnesses and examined the documents brought forward by the prosecution, the Court however said it did not agree with the defendants who had said that the “motive” behind the police application was that it be used as a platform for the prison authorities to “justify” their actions.

From the evidence Director of prisons Alexander Dalli and Helenio Galea and the documents exhibited in Court it was clear that the prison authorities had not breached the rights of the persons detained at the Correctional Facility, had allowed access to their lawyers, as well as to journalists and interpreters and were adhering to long standing policies and not singling out the accused, said the court.

“The prison authorities have made it clear that they have not denied access, but that access was not carried owing to the fact that the accused did not want to make use of interpreters Court list, as is the procedure, but, of other persons of their trust, who are native French speaking persons based in the law firm of their defence counsel.”

After viewing correspondence between the Chief Operations Officer, the Assistant Director and the defence counsel for the accused, the court said it was clear that the prison authorities corresponded in a timely, clear and professional manner with legitimate requests for clarifications and information. 

Magistrate Lia noted that throughout the hearing of the proceedings, no explanation was put forward on behalf of the accused, “considering their urgency to have access with interpreters of their trust,” to justify why the same application was not also submitted before the correct Court each time or why a subsequent application was not immediately presented in the correct forum following the relative decrees informing that the Court as presided could not take cognisance of the applications. There was also no explanation as to why “from the last correspondence of 18 th June 2019, the first application submitted to Court was over four months later, yet in the reply submitted by the accused, fault is entirely placed on the prison authorities which draws attention away from the delays and errors by the accused in making their requests.”

But despite her criticism of the defendants, the magistrate concluded that the articles presented by the Commissioner of Police based themselves on developments during the sittings held in open Court or a reporting of either press statements and opinions put forward by other third parties who are not integral or a party to the case.

“Whilst it can be speculated on what basis, other third parties, not privy to the act of proceedings, facts or evidence are coming to their conclusions, the respective authors of the articles are putting forwarding their opinions as presented in the name of the organisations they represent.

“From these three articles there does not amount a breach of any article of law according to the Criminal Code to satisfy the request that the Court should impose an order based on article 517 of the Criminal Code and therefore denies the second request in the application of the Commissioner of Police.”

The prosecution had also requested the Court to order an investigation as to how information and transcripts limited to the acts of proceedings had been leaked to the press.

As part of the reply of the accused, an article was presented titled “The Rescue. A flimsy raft, more than 100 souls, and three teenage heroes – or are they pirates?”

During a sitting on the 25 November 2019, the prosecution had made submissions to the Court that the articles refer to privileged documents not accessible to third parties and therefore were in breach of article 518 of Chapter 9 of the Laws of Malta.

The prosecution made specific reference to passages of the same article where one finds extracts of transcripts of communications between aircraft deployed by the EU’s Operation Sophia and the El Hiblu obtained by a nearby ship, communication between the AFM and the El Hiblu 1, a cross-examination of Nader El-Hiblu – the Captain of the ship by defence attorney Cedric Mifsud, with magistrate Aaron Bugeja presiding and to a recording provided by a source who attended the hearings; Malta has yet to release official transcripts.

The magistrate noted that the prosecution had argued that journalists may refuse to disclose a source of information to a court £unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of national security, territorial integrity or public safety, or for the prevention of disorder or crime or for the protection of the interests of justice.”

“Provided that the court shall not order such disclosure unless it is also satisfied that in the circumstances of the case the need for investigation by the court outweighs the need of the media to protect its sources, due regard being taken of the importance of the role of the media in a democratic society:”

“Therefore,” said the magistrate, “based on the above there exist no grounds for an investigation to be ordered and therefore the Court denies the request by the prosecution to order an investigation with respect to the source of information and transcripts in the article quoted. The Court, however, orders that all documents exhibited and forming part of the acts of proceedings are not to be made available to anybody directly or indirectly not being a party to the proceedings and any breach of this Order shall result in the Court taking all necessary actions and safe guards in accordance to law.”

 

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