Extradition law ruling confirmed

The Constitutional Court yesterday confirmed a judgment of the First Hall of the Civil Court and concluded that subsidiary legislation issued in terms of the Extradition Act had not been ultra vires the law itself.

The judgment was delivered following an appeal filed by Geryl Serge from a judgment of the first court last March.

The Constitutional Court heard that last November Carmelo Borg and Mr Serge had claimed that a legal notice issued was beyond the powers granted by the Extradition Act to the minister responsible for justice and home affairs.

Both men said that separate extradition proceedings had been filed against them for their extradition to Italy, in Mr Borg's case, and to Belgium, in Mr Serge's case.

The procedure used against them was that of the European Arrest Warrant (EAW), which procedure was established by Legal Notice 320 of 2004 and later amended by another legal notice last year.

According to the two men, the legal notice issued last year was null and void as the Minister for Justice had exceeded his powers in terms of the Extradition Act.

However, last December, Mr Borg withdrew his case and the judgment of the first court was delivered solely in Mr Serge's regard.

The first court said that subsidiary legislation (such as a legal notice) had to be within the powers granted by the principal law, in this case the Extradition Act, to the government minister who enacted it.

The court had to examine those powers and had also to interpret them in the light of the scope of the principal law.

The Extradition Act provided for the extradition to and from other countries of persons accused of crimes. The law established the procedure which had to be adopted when a person was extradited.

As a general rule the law provided that the local courts had to be satisfied there was some evidence against an accused person prior to ordering that person's extradition.

However, the Extradition Act also provided that the Minister of Justice was empowered to change and modify the extradition procedure.

The extradition procedure regulated by the law was not one of public order, for it could be changed according to the agreement reached by the minister with other specified countries.

The first court declared that when a government minister was authorised to change the general procedures regulated by the Extradition Act, he could not completely ignore the provisions of that law. Certain fundamental rules of justice had to be observed. The procedures in the legal notices complained of by Mr Serge were not so radical as to violate such general principles.

This subsidiary legislation, the court found, prevented the accused person from producing evidence which might contradict the charges raised against him by a foreign court. However, certain safeguards were retained, for the legal notices provided for situations when an extradition could not be ordered.

In conclusion, the first court found that the subsidiary legislation allowed a certain discretion in the hands of the competent authorities, and provided for a more expeditious extradition process.

These provisions, the court ruled, were in conformity with the general principles of the Extradition Act.

Mr Serge appealed to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The Constitutional Court said that the extradition process was essentially a political act on the part of a state.

In countries where the rule of law operated, an extradition was subjected to controls by the judicial system, though the level of control varied from one country to another.

The Extradition Act provided the basic procedures for extradition to other Commonwealth countries and to other states. This law also provided for extradition at the request of the International Criminal Court.

The legal notices in issue had been enacted in virtue of the powers granted to the Justice Minister by the Extradition Act, and the law allowed for an element of flexibility in extradition with specific countries. Such flexibility was not a new concept, the Constitutional Court noted.

Mr Serge's complaint was that when the extradition of an individual from Malta was requested in terms of an EAW, the remanding court in Malta was limited in the verification procedures it could carry out.

This limitation, the Constitutional Court said, was permissible and, provided it did not exceed the terms of the European Council Decision of June 2002, could not be considered ultra vires the powers in terms of the Extradition Act.

The legal notices in issue introduced restrictions that were permissible, reasonable, and not in violation of the principles of natural justice. They also fell within the scope of the Extradition Act.

The Constitutional Court added that it concurred fully with the conclusions reached by the first court and dismissed Mr Serge's appeal.