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European arrest warrant and equality of treatment of EU citizens: Croatian example

European arrest warrant and equality of treatment of EU citizens: Croatian example. Elizabeta Ivičević Karas University of Zagreb, Faculty of Law. Contents. I. Introductory remarks :

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European arrest warrant and equality of treatment of EU citizens: Croatian example

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  1. European arrest warrant and equality of treatment of EU citizens: Croatian example Elizabeta Ivičević Karas Universityof Zagreb, FacultyofLaw

  2. Contents I. Introductoryremarks: ImplementationofCouncil Framework Decision on EAW inCroatian legal order - legal andpoliticalimplications II. JurisprudenceofCroatiancourts: Exclusionofdoublecriminalityverification: statute oflimitations - substantive or procedural nature? III. DecisionoftheCroatianConstitutional Court IV. Case-lawofthe Court ofJustice V. Comparativeperspective VI. Conclusions: EAW andequalityoftreatmentof EU citizens?

  3. I. Introductoryremarks TheConstitutionoftheRepublicof Croatia (Article 9(2)): A citizen of the Republic of Croatia may not be forcibly exiled from the Republic of Croatia nor deprived of citizenship, nor extradited to another state, except in case of execution of a decision on extradition or surrender made in compliance with international treaty or the acquiscommunautaire of the European Union.

  4. I. Introductoryremarks Act on JudicialCooperationinCriminalMatterswith EU memberstates: • enactedinJuly 2010: • applicationof EAW also for offencesperpetratedbefore August 2002 • statute oflimitations as a ground for optionalnon-executionof EAW • amendedendof June 2013: • applicationof EAW only for offencesperpetratedafter August 2002  severe criticismfromtheEuropeanCommission • statute oflimitations as a ground for mandatorynon-executionof EAW • amendedinOctober 2013:  applicationof EAW also for offencesperpetratedbefore August 2002

  5. II. JurisprudenceofCroatianCourts CroatianSupreme Court, Kž-eun 11/13, 20 September 2013 “Whileexecuting EAW, the court shallnotapplydomestic legal provisionsregarding statute oflimitationsofcriminalprosecution, becausethe court doesnotverifythedoublecriminality”. • AJC (Article 10) – verificationofdoublecriminalityexcluded(Aricle 2(2) of Framework Decision on EAW) verificationof statute oflimitations is alsoexcluded although • Article 2(4) of Framework Decision:doublecriminalityincludes (only) constituentelementsoftheoffence not statute oflimitations • AJC (Article 20(2)) – statute oflimitations as a ground for mandatorynon-executionof EAW – lexloquens, inaccordancewithArticle 4(4) ofthe Framework Decision on EAW

  6. II. JurisprudenceofCroatianCourts Statute oflimitation – substantive or procedural nature? • Proceduralobstacle doesn’taffectthedoublecriminality • Statute oflimitations  applicationofdomesticlaw • CroatianSupreme Court, Kž-eun 2/13, 26 July 2013

  7. II. JurisprudenceofCroatianCourts • Germany issued EAW for J.P. • a former Yugoslav and Croatian intelligence agent • suspected of participating in organization of murder of S. Đ., Croatian emigrant in Germany, in Munich in 1983 • Germany issued EAW for Z.M. • a former Yugoslav and Croatian intelligence agent • suspected of aiding and abetting another in the perpetration of murder of S. Đ. • Croatian prosecutorial authorities (State Attorney’s Office): • dismissed crime reports against J.P. and Z.M. – criminal prosecution was statute-barred according to former Yugoslav Criminal Code • the county prosecutor forwards the request to competent county court

  8. II. JurisprudenceofCroatianCourts EAW againstJ.P. • Zagreb County Court, Kv-eun 2/14, 8 January 2014 • CroatianSupreme Court, Kž-eun 2/14-5, 17 January 2014 • the court shallnotapplydomestic legal provisions on statute oflimitationsofcriminalprosecution, becauseverificationofdoublecriminality is excluded • statute oflimitations as a ground for mandatorynon-executionof EAW - only for offences for whichverificationofdoublecriminality is notexcluded • statute oflimitations – substantive nature  integral partof “doublecriminality”

  9. II. JurisprudenceofCroatianCourts EAW against Z.M. • Velika Gorica County Court, Kv-eun 1/14, 15 January 2014 • refused to execute EAW because of statute of limitations • widow of S.Đ. appealed • Croatian Supreme Court, Kž-eun 5/14-4, Kž-eun 14/14-4, 6 March 2014 • accepted the appeal and vacated the decision of Velika Gorica County Court

  10. III. DecisionofCroatianConstitutional Court U-III-351/2014, 24 January 2014 • thesurrender procedure is not a criminal procedure, but suigenerisprocedure • narrowscopeofexaminationofconstitutionalcomplaintinfrontoftheConstitutional Court • Constitutional Court “is notallowed to questioninterpretationofdomesticcourtsregardingdomesticlawanditsapplicationinconcretecasesofsurrender on thebasisof EAW, unlessthere are presentedreasonsindicatingthattheassessmentofcourtsin a concretecasewas “flagrantlyandobviouslyarbitrary””

  11. IV. Case-lawofthe Court ofJustice • Gaspariniandothers, C-467/04, 28 September 2006 31. „Article 4(4) oftheframeworkdecision,..., permitstheexecutingjudicialauthority to refusetoexecute a Europeanarrestwarrantinteraliawherethecriminalprosecutionoftherequestedperson is time-barredaccording to thelawoftheexecutingMember State andtheactsfallwithinthejurisdictionofthat State underits own criminallaw. Inorder for that power to beexercised, a judgmentwhosebasis is that a prosecution is time-barreddoesnothave to exist.“

  12. IV. Case-lawofthe Court ofJustice • Wolzenburg, C-123/08, 6 October 2009 61. “When implementing Article 4 of Framework Decision…, the Member States have, of necessity, a certain margin of discretion”  whenimplementingoptionalgrounds for non-executionof EAW as mandatory

  13. V. Comparativeperspective • Statute oflimitation as a ground for mandatorynon-executionof EAW: Austria, Belgium, CzechRepublic, Finland, France, Greece, Italy, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Slovakia, Sweden • Statute oflimitation as a ground for optionalnon-executionof EAW: Cyprus, Rumania, United Kingdom, Portugal, Spain, Bulgaria, Denmark, Estonia, Ireland, Latvia, Luxembourg, Poland

  14. VI. Conclusions • Statute oflimitations – substantiveorprocedural nature? • Procedure of surrender as sui generis procedure • Ruleoflaw? • Equalityoftreatmentof EU citizens?

  15. Thankyou!

  16. European arrest warrant and equality of treatment of EU citizens: Croatian example Elizabeta Ivičević Karas Universityof Zagreb, FacultyofLaw

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