Rape suspect brought to Malta on a European warrant cannot be rearrested
Mazhar Mushtaq threatened a 15-year-old girl that he would publish nude photos and videos of her
A court has ruled that it cannot order the rearrest of a man who fled Malta while out on bail during an ongoing rape case due to a legal lacuna.
Magistrate Claire Stafrace Zammit gave the ruling in the case of Mazhar Mushtaq, 35, from Pakistan, who appeared in court last week following a European Arrest Warrant issued in February 2023.
He was found in Genoa and brought back to Malta to face charges first brought against him in 2018.
At the time, the court heard that a 15-year-old girl was coerced into having sex with him after he threatened to publish nude photos and videos of her.
Mushtaq was charged with rape, forcing the girl to participate in pornography, engaging in sexual activity with a minor through violence, misuse of telecommunications equipment, and producing child pornography. He has pleaded not guilty.
The alleged crimes involved the use of social media platforms Facebook, Instagram, and Snapchat.
When the accused failed to attend court sittings, a warrant was issued. He was later found in Genoa and returned to Malta.
The prosecution, led by Inspector Marshal Mallia, filed an application in the original proceedings, informing the court of the breach of bail and requesting that bail be revoked.
The defence, led by lawyers Franco Debono, Marion Camilleri, and Herman Mula, argued that the law was unclear in this regard.
The magistrate observed that there is a lacuna in the law concerning breaches of bail.
The law gave the prosecution two options in cases of bail-breaches: either file an application in the case proceedings asking for the bail to be revoked (as happened in this case), or arraign the accused under arrest for breach of bail.
The court noted that, whereas in the latter cases the law allowed the possibility to revoke bail or order the confiscation of the bail bond, this was unclear in the cases when an application was filed.
And, according to a key legal principle, doubt is in favour of the accused.
For this reason, she did not order his rearrest.
The magistrate highlighted the legal lacuna and ordered that a copy of the ruling be sent to parliament's speaker.