Maltese suspected drug smuggler claims his continued detention is illegal

The continued detention in prison of Paul Attard, a shipping boss wanted by the Italian authorities over a 10 tonne shipment of cannabis, has been extended by constitutional cases Attard himself had filed, a court heard today. 

This emerged from a hotly contested hearing, held this afternoon, of a habeas corpus application filed by Attard’s lawyers. Habeas corpus is a legal remedy which decides whether the applicant’s arrest is legal or not. Such applications are always treated with urgency.

His lawyers filed the proceedings in an attempt to have his continued arrest declared illegal.

Last December, an appeals court had rejected Attard's arguments and upheld the request by the Italian judicial authorities for his rendition to Italy.

When the habeas corpus sitting was convened at around 4:30pm on Monday, Magistrate Donatella Frendo Dimech heard a court representative confirm that there were three Constitutional cases involving Paul Attard currently pending before three different judges.

Lawyer Jose Herrera, who is appearing for Attard, together with lawyers Franco Debono and Arthur Azzopardi, explained why they had felt the extraordinary proceedings were necessary. In 2021, the Court of Appeal had dismissed Attard’s appeals against the decision to arrest him under a European Arrest Warrant and had ordered his rendition to Italy. 

But after the appeal judgement , Attard’s lawyers had filed two separate Constitutional cases before two different judges, attacking his extradition from different legal angles..

Debono told the court that there had been a recusal in one case and a request for an interim measure in the meantime. “We pushed hard for his release.”

“He needed a forum to examine his arrest,” Herrera said. “So what did we do? We filed requests for interim measures before the constitutional courts and they are currently either rejected or pending,”

The lawyer cited an unconnected judgement from July 2020 in which the immigation appeals board had ruled an arrest, which was initially legal, to have been rendered illegal by the fact that a bail request had not been served to the Attorney General within the stipulated period.

“The circumstances of this case are parallel. Instead of having a Board and a Board of Appeal, we have courts,” Herrera submitted.

“If an ordinary remedy is not provided in an expedited manner, then the arrest is illegal”

“The law itself provides timeframes…the spirit of the law is that a person should not be detained uselessly.”

Another application, filed before the Court of Criminal Appeal had been decided today by Mr. Justice Giovanni Grixti, said the lawyer. “The application stated that the Office of the Attorney General had to obtain a guarantee from the Italian prosecutors, as he had a doubt that he would be treated fairly.”

Asked by the court as to what doubt he was referring to, the lawyer raised his voice.

“”I have no other forum. Can a person be held under arrest indefinitely? I must have a forum to challenge it.” Herrera shouted. Debono chimed in, adding that “the decision contradicted the court’s own reasoning.”

The only other option available to Attard was to file a Constitutional case in which the court would be limited to deciding on whether the length of the proceedings breached his rights, he said, adding that such proceedings normally take at least 3 years to be concluded.

His client would end up in circumstances where he remained under arrest, for no reason other than because he was awaiting a decision by the constitutional courts.

“So I am in a position, whereby because I tried to safeguard my rights, I am being prejudiced because there is no forum to examine the legality of my arrest,” submitted the lawyer.

“Thirdly, even if there was no constitutional case, there is still no confirmation from the AG on whether he was going to renounce to the rule of speciality,” said Herrera, adding that Mr. Justice Giovanni Grixti had handed down a ruling, ordering the AG to bring evidence on this matter, just this morning.

The magistrate, herself a former prosecutor, pointed out that under European Law, if a member state doesn’t explicitly renounce to the rule of speciality, it is taken to be in effect.

Tempers flared as Herrera argued with the magistrate over whether an extradition could take place when the law of speciality applied. At one point, the lawyer raised his voice and was reminded by the magistrate to keep his place.

“He is under arrest, not because he breached conditions, but because he exercised his constitutional rights…he is being prejudiced by the fact that he has no forum to bring his action,” submitted Herrera.

The role of this court was only to examine the legality of the arrest, he said. 

The magistrate asked whether another application for habeas corpus had been filed when the lawyers noted that 4 days had passed with no reply.

She noted with evident displeasure, that no urgent application had been filed over that period. “I am hearing a lot of convoluted arguments and seeing no evidence,” said the court.

Debono interjected that Attard had filed constitutional proceedings which were still ongoing at no fault of his own.  “If a court doesn’t give me a decision, what do I do? File more applications for it not to decide on?”

“We believe that we have a valid argument. Let us say the proceedings take another 2 years,” he said, stressing that this would be no fault of the judges involved.

“We are trying to bring to the attention of the court the fact that our client is under arrest because of constitutional proceedings he himself filed. 6 months is not a long time, in truth, but for a person under arrest it is a lot,” said the lawyer.

“The fact is that if I cannot place an arrest under legal scrutiny, then it is no longer a legal arrest,” he submitted, asking whether it was “conceivable” to hold a person under arrest indefinitely.

The magistrate replied that there was “a recent judgement precisely on this point,” before adjourning the case for her to hand down her decision tomorrow.