More than 10 court judgments deleted from public record – Minister

Legal experts question discretionary power to determine who can wipe out the past

There are around 10 court judgments that have been removed from the government’s public database based on the ‘right to be forgotten’, Justice Minister Owen Bonnici told The Shift News following the controversy surrounding the removal of the court judgment of a law student who committed a crime eight years ago.

Yanica Barbara and her boyfriend Thomas Sant had been given a conditional discharge for theft committed in August 2009 and yet they were granted a warrant to practise law. The situation was considered so serious that both the Chief Justice and the Chamber of Advocates filed an official objection about it with the President of Malta, The Times of Malta reported.

A search for the court judgements by The Shift News the following day revealed that the judgement on Barbara had been removed from the public record. The Justice Minister confirmed this, saying the government accepted Barbara’s request to strike off the judgment from the database.

Bonnici said it was wrong to make a political issue out of this decision because others had also benefitted from a right granted by European case law, although legal experts are contesting the argument.

“This is not about one case and it should not become a political issue. There are around 10 judgments that have been removed. The law already grants this right, it had just not been implemented. It does not make sense to have a system wherein a police conduct can be ‘cleaned’ after some time and yet public records continue to reflect minor crimes. If the individual is reformed, then it is a good thing and of benefit to society,” Bonnici said.

The Justice Minister referred to new Data Protection law on personal records held, which comes into force in May. “We have consulted the Data Protection Commissioner and decided we would evaluate these matters on a case by case basis,” he added.

The Minister’s explanation was criticised on the grounds that the process and the criteria for such decisions needed to be transparent. Nationalist Party MP Jason Azzopardi said in a Twitter post that the Justice Minister had “introduced by stealth a new ‘right’ for cronies to be forgotten”.

Speaking to The Shift News, Azzopardi said: “It is obscene that he has made himself the fountain of Right, more so when it was done surreptitiously. If he was really acting in good faith he should have announced it in a proper way”.

Experts in European Law contacted by The Shift News also expressed concern on the lack of a standardised process and the lack of transparency. They argued that “if and when” such a right is granted in domestic law, there should be rules, such as time limits and the nature of the crime considered, that lay out how it is to be exercised.

Dr Bonnici told The Times of Malta: “When I became minister, I instructed Frank Mercieca to use his discretion and decide whether to accept requests from people who wished to have their record of criminal sentences deleted. This in respect to the right to be forgotten”.

One lawyer pointed out that Mercieca, the Courts Director, had to answer to the Minister: “He cannot be given some sort of carte blanche on the matter. If true, this was never made public and judges and magistrates were not consulted”.

Judgments are public documents, and while the practice in many European countries is for the courts (not the minister’s man) to grant anonymity in some judgments for good reason the deletion of a public record was “absurd”, lawyers agreed. They stressed the need for transparency and a clear explanation of criteria: “Can the right to be forgotten be applied for the sexual offenders’ register, for example?”

The European case law referred to by the Minister ordered Google to respect the right to be forgotten in terms of news reports, not the removal of judgments delivered by the courts, lawyers confirmed.

When asked about the process for the implementation of this decision, Bonnici told The Shift News: “There was no interest in discussion. There was no debate”.

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