The Malta Independent 17 July 2019, Wednesday

Extradition of Czech man who claimed abduction in Gozo barred by the courts

Thursday, 7 March 2019, 16:42 Last update: about 5 months ago

The extradition of a Czech man, who had claimed to have been abducted in Gozo and forced to sign incriminating documents when he was arrested on a European Arrest Warrant (EAW) in January last year, has been barred by the court of Magistrates.

40-year-old Marek Drga was the subject of two EAWs issued by the Czech authorities who want him to answer to accusations that he engaged in a fraudulent VAT carousel in March and May 2011, after allegedly having acquired electrical equipment from Slovakia VAT-free, and then claiming VAT in the Czech Republic. 

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Drga had been extradited to face the charges, was duly prosecuted and a decision was taken against him. He is appealing that decision and returned to Malta in the interim.

But the Czech authorities had then filed a second EAW on similar grounds.

Drga denies the charges, but resisted the warrant after allegedly being subjected to police intimidation by Czech authorities linked to a former business partner there.

In a judgment handed down by magistrate Donatella Frendo Dimech earlier this week, the court looked at the timeline of events which led the man before it.

The magistrate observed that the man had been requested by the District Court in Zlin, Czech Republic on 3 October 2014. Following a decision by the Court of Criminal Appeal on the 12 January 2018 which ordered Drga’s committal to custody to await his return to the Czech Republic, Drga was taken into custody by the Czech authorities on February 2 and released on August 23 last year when custody was changed into supervision by a probation officer. Drga had informed the probation officer in writing that he would be returning to Malta whilst the proceedings against him in the Czech Republic were still ongoing, noted the court.

Magistrate Frendo Dimech also noted that the judgment of the Court of Criminal Appeal had clearly stated that the Order of Committal (which leads to extradition) was being made “subject to the law of speciality.” The rule of speciality is a legal safeguard whereby a person who is extradited to a country to stand trial for certain criminal offences may be tried only for those offences and not for any other pre-extradition offences

She pointed out that if Drga had fled from the Czech authorities to avoid prosecution or the serving of any eventual sentence relating to the offences for which his previous extradition from Malta took place, a European Arrest Warrant attesting to that fact and requesting his return specifically on such basis would surely have been presented.

“None was filed,” notes the judgment.

Having ascertained that Drga had not violated any conditions governing his release with respect to the criminal proceedings for which his extradition was granted on the 12th January, 2018, what remained to be established was whether the request for his return for offences allegedly committed in 2011 and 2012 on the strength of the European Arrest Warrant, was one made in conformity with the Rule of Specialty requirements as laid down by the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

The Rule of Speciality requirements, as laid down in Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between member States, state that “in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.” 

But Malta had made it clear to the General Secretariat of the council that it did not agree to have its consent to waive the rule of speciality presumed a priori.

The same Council Framework Decision imposed a term of 45 days from the date of final discharge in which the wanted person must leave the territory of the requesting State and within which the rule of speciality does not apply. But as there was no final decision, discharging him on the day he left the Czech Republic, the term could not be applied to Drga’s case.

“Thus the wanted person’s right, in terms of Article 27(2), not to be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered, remains unfettered and unaffected,” said the court.

Consequently, as Drga had left the Czech Republic before his final discharge, his right not to be prosecuted for offences committed prior to his surrender, other than that for which he was surrendered – a condition on the basis of which his previous surrender to the Czech authorites in February 2018 was acceded to, as confirmed by the Court of Criminal Appeal in Malta -  was being safeguarded by the court.

Declaring that the return of Marek Drga to the Czech Republic was barred by the rule of speciality, the magistrate ordered his discharge. 

Lawyer George Camilleri appeared for the Office of the Attorney General. Lawyer Roberto Montalto was counsel to Drga.

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