The Malta Independent 3 December 2021, Friday

George Degiorgio asks court to declare Security Services Act unconstitutional

Tuesday, 26 October 2021, 12:03 Last update: about 2 months ago

George Degiorgio, one of the men accused of murdering journalist Daphne Caruana Galizia, has filed an appeal to a recent judgment which awarded him €10,000 for a breach of his rights over phone taps which the court had ruled to be illegal, asking the court to declare the Security Services Act unconstitutional and expunge any evidence obtained as a result of that Act.

Degiorgio also filed a judicial protest Tuesday morning, warning that he would be seeking damages if he is to be proceeded against on the basis of illegalities which nullified his presumption of innocence.

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In his 17 page application to the Constitutional Court, Degiorgio's lawyer, William Cuschieri, argues that not only was there a breach of his right to respect for private and family life, but also of his right to a fair trial. The latter right was not found to have been breached by Mr Justice Toni Abela in his original judgment.

"The first court reasoned that...by the expunging [of references to the phone taps] ordered by the Court of Criminal Appeal on 22 September 2021...it is as if the plaintiff was given a remedy and his complaints have been neutralised, therefore not finding a breach of Article 6 [Fair trial rights] of the convention." Cuschieri said he disagreed with this reasoning, arguing that the breach of rights had happened well before the judgment of the Court of Criminal Appeal.

The court application goes on to say that from his interrogation and the subsequent testimony of Superintendent Keith Arnaud, it is "most clear and evident" that the only way the investigation tied Degiorgio's number to another number allegedly used in the crime is through phone tapping when Degiorgio had requested a top-up voucher which was allegedly used to send the detonation signal to the bomb in Caruana Galizia's car.

It was not true that the information had also been obtained from Vodafone as the service provider can never know what is said during a phone call, he said. "This can only be obtained through interceptions made by the Head of the Security Services."

The lawyer argued that, as the intercepts are evidence gathered in an illegal way, in breach of his fundamental rights, there is not only a breach of the accused's right to privacy but also to his fair trial rights "as he can never have a fair trial faced with evidence which breaches the law and his fundamental rights."         

Additionally, these interceptions were never exhibited as recordings or transcripts and neither was a warrant confirmed by the Head of the Security Services, argued Cuschieri.

"So what happened in this case? The accused was arraigned and was held under arrest on the strength of these recordings with the case against him built solely upon them. Superintendent Keith Arnaud testified to them as if they were evidence that had been obtained legally. The media reported them in a sensational manner. So with their actions, the defendants shifted the focus of judicial scrutiny from the interceptions..." This breached the principle of "equality of arms" as the prosecution, despite mentioning and resting its case on a piece of evidence, did not present it in the acts, depriving the applicant of every procedural right that he has in this regard..."

The fact that the Court of Criminal Appeal on 22 September 2021 recognised what had been done incorrectly and ordered the expunging of the relevant declarations made by Superintendent Arnaud didn't mean that there hadn't already been a breach of Article 6 of the Convention, argued the lawyer.

Cuschieri accused the Commissioner of Police and the Head of the Security Services of "acting as if they were above the law, that the law doesn't apply to them and that there is no legal framework that regulated them. This is barefaced abuse and constituted as a breach of the fundamental rights of the plaintiff."

"Arnaud himself said that had it not been for these intercepts, the plaintiff would not have been arraigned. How, therefore, can he have a fair hearing?"

The media's reporting of the criminal proceedings, Arnaud's testimony, in particular, had created "prejudicial pre-trial publicity" against Degiorgio, argued the lawyer, adding that Deigiorgio's presumption of innocence had been "reduced to nothing" once the prosecutor testified, despite not exhibiting the evidence in the acts of the case.

Cuschieri asked how jurors are supposed to not remember that which was reported from the court about the interceptions, which later turned out to be illegal. "No jury which does not know of the interceptions [will be found]."

"The defendants cannot be allowed to break the law, boast of the information they collected illegally, have it broadcast to the four winds and then expect that the...process would be just and fair and not sullied by that which they did illegally."

The lawyer submitted that the words of the prosecuting official, when he told the court that Degiorgio had asked his girlfriend to buy wine 'had been given a macabre meaning of the celebration of a murder."

Security Services Act 'breaches article 6 of the European Convention on Human Rights'

Cuschieri said that the Security Services Act, Chapter 391 of the Laws of Malta, contained no safeguards against abuse and no faculty for judicial scrutiny. The head of the Security Services "can do whatever he wants with regards to interceptions because his actions do not require some form of judicial authorisation before they happen."

He accused the Security Services of wanting to hold back information from the courts, saying the Head of the Security Services 'felt himself far too above the law" to answer questions put to him by the court. The law contemplates no adequate and effective remedy against abuse, and therefore breached fundamental rights, argued the lawyer.

Chapter 391 contains a provision that excludes questions being asked in court or evidence being adduced about interceptions which may suggest that an offence has been committed or that a warrant has been issued about intercepts. "This legislation is inconsistent and incompatible with the right to a fair hearing and private or family life," Cuschieri argued. "You cannot have the operations of the Head of the Security Services or the exercise of his powers which are not subject to court scrutiny."

Degiorgio's lawyer also argued that the court had been mistaken when it non-suited the Commissioner of Police. The Commissioner had been "well aware" that there was an illegality and hadn't summoned the Head of the Security Service as a witness. The Commissioner was not exempt from responsibility and should not have been non-suited, argued Cuschieri.

The lawyer also argued that the remedy given by the court should not have been financial compensation alone but also an effective remedy - in this case, that the Security Services Act be declared null and void.

Cuschieri asked the court to confirm the upholding of Degiorgio's grievance under Article 8( Right to private and family life) and reverse the decision not to find a breach of Article 6 (Fair hearing). He also asked the court to declare that Chapter 391 of the laws of Malta breaches fundamental rights.

Crucially, he also asked the court to order the expunging from the acts of the proceedings of "every evidence obtained illegally." He also asked the court to add the Commissioner of Police to the suit and also pass judgment in his regard.

 


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