A judge yesterday overturned a magistrate’s decision to extradite three Maltese businessmen to Italy for allegedly smuggling more than 18,000 kilograms of cigarettes because Italy had never formally charged them.

Mr Justice Antonio Mizzi ruled that Italy had not satisfied the local extradition requirement of actually accusing someone of a crime. The men were still being investigated.

Last month, Magistrate Aaron Bugeja ordered that Philip Mifsud, Michael Spiteri and Francis Galea be extradited over allegations that they were connected to 18,250 kilograms of contraband cigarettes in Genoa.

But Mr Justice Mizzi upheld the argument put forward by their defence lawyers, Joseph Giglio, Stephen Tonna Lowell and Franco Debono, that their clients had never been charged.

European Arrest Warrant sent to Malta was a‘fill in the blanks’ exercise

In his judgment, he said that although the investigation phase in the Italian procedural system was considered part of the judicial process, it could last up to two years before a person was actually charged with a crime.

The European Arrest Warrant sent to Malta was simply a “fill in the blanks” exercise. The documents presented in court showed the Italian investigators were still looking for other people in connection with the investigation.

While it was good that there was cooperation between European member states, arrest warrants could not be taken as the “Bible” and had to be seen in the context of national laws.

In Malta’s case, an arrested person is to be brought before a court within 48 hours but in Italy a person could spend up to two years under arrest, with a risk of being freed without charge at the end of the investigation. Malta’s judicial system was different to Italy’s, the judge noted, as he drew a comparison to the extradition of Australian national and Wiki-leaks founder Julian Assange, who was wanted by the Swedish authorities. In that case the British had acceded to the Swedish request because there was a guarantee that Mr Assange would be swiftly brought to trial.

No such assurances were given by Italy, Mr Justice Mizzi said.

No more hurdles would stand in the way of extraditing the men once the investigation was concluded and the Italians had enough evidence to prosecute, he said. But until then, he ordered them to be freed.