Court blames prosecution for collapse of alleged Ndrangheta drug smuggler's extradition

The prosecution's failure to exhibit complete documentation regarding a European Arrest Warrant has led to the collapse of extradition proceedings against a man wanted by Italian authorities in connection with an large-scale Ndrangheta drug trafficking operation.

Cocaine and cannabis had been smuggled from Albania and the Italian regions of Puglia and Calabria for eventual sale in Sicily and Malta.

Maltese citizen John Spiteri, 56, of Qrendi, had been investigated as a result of raids carried out last year by the Italian police, after a four-year investigation into a drug trafficking ring. Some 430kg in cannabis, cannabis resin and cocaine were reportedly seized by the Italian Guardia di Finanza during the raids which largely targeted individuals from known mafia families.

In December 2021, the Italian police had issued a European Arrest Warrant, together with a Schengen Information System Alert for Spiteri, notifying police forces across Europe that he was a wanted man. 

Spiteri was arrested in Malta and arraigned on 11 June, where he did not give his consent to be extradited.

His defence lawyers had argued that  the proceedings were null, in view of the certificate issued by the Attorney General on 9 June, which specified that the Italian court “has the function of requesting the issuing of alerts in the Republic of Italy.” The defence submitted that it did not appear that the AG had certified the European Arrest Warrant as was required by law.

The prosecution argued that the certificate had indeed been issued under the applicable law dealing with an alert under the Schengen Information System.

In a judgement handed down this morning, Magistrate Donatella Frendo Dimech observed that in an extradition hearing the court must first of all determine whether the crime for which the subject’s extradition was being requested is an extraditable one. The offence is identified from the European Arrest Warrant.

The court noted that in his testimony, prosecuting Inspector Mark Galea had stated that a copy of the EAW, written in Italian, had been attached to the SIS alert. But the Extradition Act and other laws regulating the proceedings stipulate that, in order to be admissible, the EAW must be written in English or Maltese to be admissible in a Maltese court. This meant that the AG had been correct to issue the certificate in terms of the SIS alert and not the EAW, as the latter was in Italian.

“However, in the initial hearing, when the prosecuting official exhibited the certificate together with the alert, he failed to also exhibit the supplementary information which accompanies the alert, the so-called Form A.”

The magistrate explained that “therefore the alert he presented was left stripped of the supplementary information which accompanies alerts in the Schengen Information System!”

This was part of the requirements established by the European Council in its Framework Decision regulating the second generation Schengen Information System (SIS II) as well as other European guidelines and regulations. 

“Therefore the alert exhibited by the prosecuting officer in the initial hearing can never be taken to be a complete act. An alert without a Form A is worthless because the Court, before which only the alert is certified, is expected to rely on that alert to take decisions…In this case the Court is faced with an incomplete alert which can never satisfy [the legal requirements].” 

Although the prosecuting officer had exhibited the EAW in Italian and English as separate documents to the alert, the court said that the alert could not be taken to have been attached to the English version of the EAW in such a way that it could rely on it, and rather was obliged to base its decision on the document which had been certified - the alert.

But in the absence of the Form A, the alert was incomplete and does not impart the information required at law, ruled the magistrate. “It sheds little light or even relevance to the Court in the exercise which it must carry out. It only serves to indicate the particulars of the extradant in an immensely dry manner.”

To emphasise this point, the court highlighted the fact that the alert only spoke of “drug offences,” when the EAW dealt with “participation in a criminal organisation” together with “illicit trafficking in narcotic drugs.” Neither did the alert indicate which authority had requested the issuing of the EAW or when, which could have helped the court achieve moral certainty that the alert and the EAW dealt with the same incident.

“It was up to the prosecution to ensure that not only the alert but also the relative Form A were exhibited together with the Attorney General’s certificate”

The acts as exhibited meant that the court was forced to base its decision exclusively on the incomplete alert without the information contained in the Form A, said the magistrate. This meant that the court could not make the decisions expected of it in an extradition hearing and neither could it determine whether there were any bars to extradition, as this required the behaviour mentioned in the alert to be an extraditable offence.

In terms of the Extradition Act, the court ordered that Spiteri was to remain in custody for the next three working days in which time the Attorney General must either file an appeal or give consent to the man’s release.

The prosecution is understood to be filing an appeal.

Lawyers Franco Debono, Charles Mercieca and Francesca Zarb represented Spiteri in the proceedings.