The Maltese crime of espionage and the nullum crimen sine lege certa maxim : complementary or conflicting?

Abstract

This paper analyses the crime of espionage from the perspective of the nullum crimen sine lege certa principle of human rights law. It argues that this crime - contained in only one provision of the Maltese Official Secrets Act - is so wide that several thousand different permutations of the completed offence can be contemplated and this without including those situations where the crime is considered from the viewpoint of a preparatory act, an attempt, a conspiracy, or an incitement to commit the said crime. Moreover, this still does not take on board article 3(2) and article 5 of the Act which further extend the provision's already extensive purport. This ambiguity in the proper construction of the provision under consideration runs counter both to article 39(8) of the Constitution of Malta and to Article 7 of the European Convention of Human Rights. Hence legislative measures need to be taken to ensure that the crime of espionage is defined with circumspection so as not to violate the nullum crimen human rights maxim.