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| SUNDAY • 29 DECEMBER 2019 maltatoday 13 Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates A European Arrest Warrant may be is- sued only for a person to face charges or else to serve a prison sentence and therefore, cannot be used if the author- ities want to interrogate this person. This was held by the Court of Criminal Appeal on 18 December 2019 in The Police -v- Biondy Clayd Raafenberg, presided by Mr Justice Giovanni Grixti. Raafenberg filed an appeal from a judgement which accepted that he trav- els back to the Netherlands, following a request made by the Dutch authori- ties. The extradition was on condition that it will be in connection to those offences mentioned in the European Arrest Warrant (EAW), which accord- ing to the Magistrates Court was armed robbery and grievous bodily harm. This order was effective after 7 days and the judgement may be appealed. The Court examined the facts of the case, where a EAW was issued from Amsterdam against Raafenberg in Oc- tober 2019. He was arraigned that same month on the basis of the EAW. The basis of Raafenberg's appeal was that the EAW was issued for him to be investigated by the Dutch authorities. Mr Justice Grixti pointed out that there was an error in the Magistrates' Court judgement since it mentioned fraud, but in fact Raafenberg was charged with armed robbery. This error does not change the situation much, be- cause both fraud and armed robbery are also scheduled offences in Regulation 13 of the Extradition (Designated Foreign Countries) Order. From what Raafenberg wrote in his appeal it is evident that a EAW is to be limited to criminal prosecution or else the execution of a custodial sentence. A EAW cannot be used to for the au- thorities to interrogate a suspect in an ongoing investigation. In fact the Appel- lant quoted from a number of previous judgements, the majority of which were EAWs from Italy, where the subject were subject to a "ordinanza per cautela domiciliare", which under Italian law, a person receiving this "cautela" will be able to file a reply to the Magistrate is- suing it and then the prosecution will then opt to prosecute or not and as such a EAW cannot be used. In this particu- lar case, the Dutch authorities held that they wanted Raafenberg to face charged under Section 54 of the Dutch Code of Criminal Procedure. According to the EAW described the incident under which the Dutch authorities want to prosecute Raafenberg. In August 2018, a person entered an Amsterdam hotel with a firearm and attacked the recep- tionist and ransacked the reception area. It resulted that the DNA profiles were of Raafenberg. From the correspond- ence between the Dutch and Maltese authorities, the former confirmed that they intent to prosecute Raafenberg. The Court quoted from Il-Pulizija -v- Michael Spiteri of 25 November 2013, which in turn quoted from Julian As- sange -v- Swedish Prosecution Authori- ty (High Court of Justice Queen's Bench Divisional Court of 2 November 2011, which stated: "It is common ground that mere sus- picion that an individual has commit- ted offences is insufficient to place him in the category of 'accused persons'. It is also common ground that it is not enough that he is in the traditional phrase 'wanted by the police to help in their inquiries'. Something more is re- quired. What more is needed to make a suspect an 'accused' person? There is no statutory definition. Given the divergent system of law involved, and notably the differences between crimi- nal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not at- tempted a definition. The Starting point is that 'accused' is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an 'accused person'. Extradition treaties, and extradition statuts, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradi- tion. Moreover, it is important to note that in England a prosecution may also be commenced if a custody officer de- cided that there is sufficient evidence to charge an arrested person and then pro- ceeds to charge him. The charging of an arrested person marks the beginning of a prosecution and the subject become an 'accused' person." Raafenberg argued that the Dutch authorities in fact wanted to carry out further investigations and not prosecute him and therefore this is an obstacle to extradition. However, Mr Justice Grixti, did not agree, because from the records of the case, it was clear that the Dutch wanted Raafenberg for prosecution fol- lowing an investigation of the case and therefore, this makes him an "accused". It makes no difference that a Dutch Ex- amining Magistrate signed the EAW, because under the Dutch system the position is a public prosecutor also. The Court of Criminal Appeal moved to reject the appeal and confirm Raafen- berg's extradition. European Arrest Warrants cannot be used for interrogations LAW LAW & PLANNING maltatoday Get the critical perspective on politics, culture and society Be the first to enjoy our print newspaper with a subscription Understanding each other from a different perspective: our journalists and columnists will provide you with expert reporting, analysis and commentary. Order now at maltatoday.uberflip.com