MaltaToday cleared of contempt of court over release of Melvin Theuma recordings

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Two contempt of court cases filed against MaltaToday after the publication of extracts from voice recordings presented in the compilation of evidence against Yorgen Fenech was rejected, the court urging the legislator to update the relevant articles of the law.

The recordings reported by MaltaToday revealed that Melvin Theuma, an avowed intermediary in the assassination of journalist Daphne Caruana Galizia, had been warned of an investigation by FIAU into his money laundering activities.

They also showed that Theuma leaked information that Vincent Muscat, il-Kohhu, one of the instigators of the murder, requested a pardon in exchange for information. A story revealed how Theuma was informed that Castile would attribute the assassination to fuel smuggling suspect Darren Debono and that Theuma was briefed on the progress of police investigations. Another showed Edwin Brincat, known as il-Gojja, coaching Theuma on what to say while recording his conversations with Fenech.

The application filed by the Director of Courts asserted that MaltaTodayThe release of the tapes by contravened a court order that prohibited the release of the tapes or their transcripts on pain of contempt of court.

But MediaToday executive director Savior Balzan and MaltaTodayMatthew Vella’s editor had told the court that most of the information published by MaltaToday had not appeared in court at that time. This meant they were not hit by the publication ban, which could not have retroactive effect, the defense argued.

Vella pointed out that neither he nor Balzan had ever been in possession of any transcripts relating to the session and that he based the reports on tapes of the police interrogation, not tapes or transcripts of conversations between the suspects.

In his decision to acquit the editors, magistrate Victor Axiak observed that while the issue of contempt of court was governed by civil law provisions and prosecuted administratively by the clerk, it was a criminal prosecution in under a dedicated section of the penal code and were liable to imprisonment.

“This distinction is fundamental, in particular because the standard of proof which must be reached is not that required before courts of civil jurisdiction (i.e. according to the balance of probabilities), but that required in cases of a criminal nature, that is to say, this proof must be of such a nature as to supplant all reasonable doubt”.

The magistrate noted that three separate orders had been issued during the compilation of evidence against Yorgen Fenech. The first, issued on January 30, 2020, prohibited the publication or dissemination of documents exposed in the case that had not been read in court. This order was later extended on February 20 to cover the release of recordings and transcripts that had not been shown in court.

Later that year, in July, a third order was issued, ordering that three voice recordings be played in court during a session held behind closed doors. The order was intended to protect the rights of third parties named in the recordings but who had nothing to do with the investigation, the court said.

But on August 13, the court presiding over the compilation of evidence, after being made aware of the publication of what it believed to be excerpts from transcriptions of the voice recordings in question, had deplored this publication, judging that it was acted in contempt of his authority.

The magistrate cited an executive order issued by Criminal Court Judge Edwina Grima in November 2021, which had been issued following the publication of a number of conversations by author Mark Camilleri. In this judgment, the judge noted that the procedure provided for by law for the publication of the publication ban order had not been followed. There was therefore doubt as to whether the person accused of raping her had been given proper notice of the order.

The court observed that the only section of the law that could be enforced to prevent third parties from publishing the voice recordings and related transcripts, also required that a copy of the order be affixed to the outside door of the room. hearing where the matter was heard. .

However, the compiling magistrate declared the defendants guilty of contempt under another article of the penal code, which binds only the magistrates participating in the procedure.

Magistrate Axiaq observed that the relevant articles of the Penal Code had not been updated for over fifty years. “In the year 2022, it makes little sense that a publication ban order should only be made public by being affixed to the courtroom door,” the magistrate said, adding that the legislator should “seriously consider” modifying and expanding this article.

“The court believes that at least such an order should be formally served on media companies in our country,” the magistrate added. They would then have the possibility of protesting against it and asking for its revocation. “Even better would be a system where the general public would be made aware of the Court’s order…by having it published on the Court’s website and, if necessary, in major newspapers.

On the merits of the case, the court said it was not persuaded by the defendants’ assertion that the transcripts of the voice recordings at issue were not the source of the articles in question. “At least in some parts of the same articles, it is clear that the information was obtained from the transcripts themselves. It is behavior that, while not against the law in the circumstances, could easily have resulted in prejudice against the interests of justice.

Although the defendants were acquitted, there was a sting in the tail, with the magistrate concluding that “the defendants would do well to consider whether through the publications in question they were really serving the public interest or not”.

Lawyers Veronique Dalli and Andrew Saliba assisted the defendants.

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