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European arrest warrants are based on mutual trust among EU states

By August 21, 2021November 30th, 2023No Comments

European Arrests Warrants system within the European Union is based on the mutual trust that the judicial authorities have with one another. This held in a Court of Criminal Appeal judgement delivered by Mr Justice Aaron Bugeja in The Police -v- Marek Drga, delivered on 6 August 2021.

The Magistrates Court on 13 July 2021 had acceded to a request from the Czech Republic that Drga be returned following a European Arrest Warrant dated 15 November 2019. The Magistrates’ Court argued the European Arrest Warrant (EAW) was issued by the Regional Court of Brno against Drga who must serve a sentence concerning VAT evasion convictions. The defence argued that this does not satisfy the double criminality rule, since such charges are not punishable with imprisonment in Malta.

The Prosecution argue that Regulation 60(3) of the Extradition (Designated Foreign Countries) Order applies and lays down three criteria, once of which that the offence does constitute an offence under the laws of Malta.

The Magistrates’ Court held that VAT evasion is an offence in Malta and the fact that it is punishable with a fine makes no difference on the validity of the EAW. Both Malta and the Czech Republic deem VAT evasion as an offence.

Drga appealed from the judgment and asked the Court of Criminal Appeal to revoke it, since the Magistrate presiding over the proceedings did make some remarks during the case which showed a certain conduct. The Appellant also criticized the judgement because the offence in question is not an extraditable offence in terms of Article 5 of the Extradition Act. He further argued that his extradition would be unjust in consideration that this offence is of a trivial nature.

The Court of Criminal Appeal in its judgement held that it does not change the analysis of the facts and the law of the Magistrates’ Court.

This legal principle was explained in Repubblika ta’ Malta -v- Emanuel Zammit decided on 21 April 2005, The Court of Criminal Appeal should analysis the records of the proceedings in order to see whether the Magistrates’ Court was reasonable in its conclusions. It would vary the conclusions of the first court only is it finds that it could not have reached to the conclusion it reached.

As to the EAW, the procedures are outlined in the Council Framework Decision of 13 June 2002 and has been transposed into Maltese law in June 2004. In February 2009 the Decision was amended.  The amendment shifted from the notion of extradition to that of surrender.

The EAW did away with the formal extradition procedures and the surrender fell under the judicial realm.

Now it is the judicial authorities within the EU which decide whether to surrender a fugitive, without involving any executive organs. The Decision is based on mutual trust and co-operation between the judicial authorities of the EU. The Court commented that this is now more efficient, faster and less bureaucratic.

In Malta the EAW is regulated in tandem with the Extradition Act. Although under the Act, there is still a criminal procedure, there are still provisions aimed at making the EAW proceedings easier and faster.

With regard to Drga’s appeal he quoted Regulation 60 of the Order which mentions that the person has to be unlawfully at large”. This was not the case and this was recognised by the Czech Republic judicial authorities.

There was no order for him to remain in the Czech Republic. The Attorney General argued that the phrase “unlawfully at large” meant that the sentence against the person could not be enforced. In this case the Czech judicial authorities wanted Drga back and since he was not in the Czech Republic, therefore, he was at large. This phrase does not mean that the person concerned had fled. The Court in its judgement agreed that there is no definition of “unlawfully at large”.

Since Malta modelled the Extraction Act to the UK Extradition Act of 2003, the term “unlawfully at large” means that extradit6ion is sought for the imprisonment sentence to be respected by the offender. In this case Drga was not presented for his sentence when delivered in the Czech Republic and therefore, was not present to commence the prison sentence.

The Court then moved to dismiss the appeal and ordered that Drga be returned to the Czech Republic.

Avv Malcolm Mifsud


Mifsud & Mifsud Advocates

The article is available on MaltaToday.