The European Arrest Warrant (EAW) is a key instrument in judicial cooperation across the EU. Its primary purpose is to facilitate the extradition of individuals between member states, having replaced bilateral extradition treaties with a standardised process.

The Framework Decision that ushered in the European Arrest Warrant promoted the principles of mutual trust and recognition between member states, aiming for the swift and efficient surrender of individuals either for prosecution or the execution of a custodial sentence.

Malta transposed the EAW Framework Decision into its national law through the Extradition Act (Chapter 276 of the Laws of Malta) and the related Subsidiary Legislation 276.05.

The principle of mutual trust and cooperation underpins the EAW, assuming that all member states uphold comparable standards of justice and human rights. However, this principle is not absolute, and member states retain some discretion to refuse the execution of an EAW under specific circumstances, such as concerns over fair trial rights or human rights violations.

In the judgment The Police vs Thomas Zaugg, delivered by the Court of Criminal Appeal presided by Mr Justice Neville Camilleri on August 14,  the court was faced with an appeal concerning the execution of two European Arrest Warrants (EAWs) issued by Belgian authorities against the appellant, Thomas Zaugg.

This case involved complex issues related to the application of the EAW Framework Decision, particularly in the context of judgments delivered in absentia and the principle of mutual trust and cooperation.

Zaugg, a Swiss national, was the subject of two EAWs issued by Belgian authorities. The first, dated January 27, 2023, covered several judgments, including judgments from the Turnhout Criminal Court and the Antwerp Court of Appeal. The second, dated April 2, 2024, related to a sentence of 50 months’ imprisonment imposed by the Antwerp Criminal Court. The warrants sought Zaugg’s surrender to serve various prison sentences in Belgium.

The Maltese Magistrates' Court as a Court of Criminal Inquiry ordered Zaugg’s return to Belgium, concluding that the execution of the EAWs was not barred by any legal impediments.

Basis for appeal

Zaugg appealed, raising several grievances, including the application of article 4a(1) of the EAW Framework Decision, which deals with judgments delivered in absentia.

Zaugg pleaded that the Court of First Instance erred in concluding that article 4a(1) of the Framework Decision was inapplicable to the judgment delivered by the Belgian court. Article 4a(1) provides for the refusal of an EAW if the individual was not present at the trial that led to a conviction unless certain conditions are met, such as being informed of the trial and having legal representation.

Zaugg argued that the Belgian judgment was delivered without him being present or represented by a lawyer, and that the court had exercised discretion rather than merely revoking a suspended sentence. He referenced the Ardic and Zdziaszek judgments of the Court of Justice of the European Union (CJEU), arguing that his case should be afforded the protections under article 4a(1).

The Court of Criminal Appeal rejected this grievance. It found that the Belgian court’s decision was based on a mathematical formula rather than discretion, aligning with the Ardic case, where the CJEU ruled that decisions revoking suspended sentences based on objective criteria do not trigger the protections of article 4a(1). The court held that the Belgian authorities had provided sufficient guarantees, and the execution of the EAW was therefore obligatory.

Zaugg also contested the finality of the Belgian judgment, arguing that the Maltese court should have requested further information from the Belgian authorities to confirm whether the judgment was subject to appeal. He claimed that assuming the judgment was final without evidence violated his right to a fair trial.

The Court of Criminal Appeal also dismissed this grievance, observing that there is no requirement under Maltese law or the Framework Decision for a custodial sentence to be final for extradition to proceed. The court also noted that the Belgian authorities had provided a guarantee that Zaugg could seek a retrial upon surrender, thus fulfilling the requirements of article 4a(1)(d) of the Framework Decision.

Zaugg further argued that the EAW did not provide sufficient evidence that he was validly summoned for the Belgian proceedings. He requested that the Maltese court either annul the decision or seek additional information from the Belgian authorities under Regulation 13A of Subsidiary Legislation 276.05.

The Court of Criminal Appeal rejected this argument, emphasising the principle of mutual trust between EU Member States. It held that the Maltese court was not required to question the veracity of the Belgian court’s findings, particularly in light of the guarantees provided by the Belgian authorities.

In his final grievance, Zaugg argued that the execution of the EAW was disproportionate and violated his human rights under the EU Charter of Fundamental Rights and Directive 2016/343, particularly regarding the right to be informed of the trial and the consequences of non-attendance.

The Court of Criminal Appeal rejected this grievance as well, citing the CJEU’s ruling in TR v. Generalstaatsanwaltschaft Hamburg (C-416/20 PPU), which clarified that non-conformity with Directive 2016/343 cannot serve as a ground to refuse the execution of an EAW. The court emphasised that the Belgian authorities had provided the necessary assurances regarding Zaugg’s right to a retrial, thereby safeguarding his rights under the Directive.

This judgment illustrates the strength of the EAW system and its foundation on mutual trust and cooperation between EU Member States. The Court of Criminal Appeal upheld the validity of the EAWs issued by Belgium, emphasising the limited scope of discretion in refusing such warrants. This case reaffirms the importance of mutual recognition of judicial decisions across the EU, even in complex cases involving judgments delivered in absentia, and underscores the balance between individual rights and the obligations of Member States under the EAW Framework Decision.

Dr Jacob Magri is an Associate at AB&A Advocates.