Conflicts and controversies in the concurrent execution of multiple instruments of mutual recognition : the Bharwani case in Malta

Abstract

On 28 February 2024, police and judicial authorities in several European countries arrested fourteen individuals on suspicion of being involved in a €195 million VAT fraud scheme across various countries. This operation was led by the European Public Prosecutor’s Office with the support of Europol. Searches were carried out in over 100 countries, including Malta. Europol reported that the suspects had allegedly established a sophisticated criminal network enabling them to defraud up to EUR 195 million through schemes involving the sale of small electronic devices, such as smartphones, without allegedly fulfilling their tax obligations. Amongst those arrested, a Maltese suspect was investigated. With respect to this Maltese individual, a European Investigation Order (‘EIO’) was issued by Swedish authorities for the collection of data and documents found in Malta. Additionally, a European Arrest Warrant (‘EAW’) was also issued for his surrender to Sweden. These two instruments of mutual recognition were executed in the Maltese territory at the same time. The timing of their execution, however, created particular legal difficulties. The execution of the EIO led to the seizure of many documents and data owned by the suspect. The documents and data were seized and dispatched to the requesting State. Meanwhile, during the EAW proceedings for his surrender, the suspect requested that he be granted access to or copies of the seized documents, which were essential for him to defend himself in the EAW proceedings. Copies were not made in time, and were not held by local authorities either, the latter had already dispatched the documents and data to the requesting State. This meant that the requested person in the EAW proceedings could not defend himself adequately because he had been deprived of the very same documents needed for his defence.