European arrest warrant European arrest warrant

and equality of treatment of EU citizens: and equality of treatment of EU citizens:

Croatian exampleCroatian example

Elizabeta Ivičević KarasElizabeta Ivičević Karas

University of Zagreb, Faculty of LawUniversity of Zagreb, Faculty of Law

ContentsContents

I. Introductory remarks: I. Introductory remarks: Implementation of Council Framework Decision on EAW in Croatian Implementation of Council Framework Decision on EAW in Croatian

legal order - legal and political implicationslegal order - legal and political implications

II. Jurisprudence of Croatian courts: II. Jurisprudence of Croatian courts: Exclusion of double criminality verification: statute of limitations - Exclusion of double criminality verification: statute of limitations -

substantive or procedural nature?substantive or procedural nature?

III. Decision of the Croatian Constitutional CourtIII. Decision of the Croatian Constitutional Court

IV. Case-law of the Court of JusticeIV. Case-law of the Court of Justice

V. Comparative perspectiveV. Comparative perspective

VI. Conclusions: EAW and equality of treatment of EU citizens?VI. Conclusions: EAW and equality of treatment of EU citizens?

I. Introductory remarksI. Introductory remarks

The Constitution of the Republic of Croatia (Article 9(2)):The Constitution of the Republic of Croatia (Article 9(2)):

A citizen of the Republic of Croatia may not be A citizen of the Republic of Croatia may not be forcibly exiled forcibly exiled

from the Republic of Croatia nor deprived of citizenship, norfrom the Republic of Croatia nor deprived of citizenship, nor

extradited to another state, except in case of execution of a extradited to another state, except in case of execution of a

decision on decision on extradition or extradition or surrender made in compliance with surrender made in compliance with

international treaty or international treaty or the acquis communautaire of the European the acquis communautaire of the European

UnionUnion..

I. Introductory remarksI. Introductory remarks

Act on Judicial Cooperation in Criminal Matters with EU member states:Act on Judicial Cooperation in Criminal Matters with EU member states:

enacted in July 2010:enacted in July 2010:

application of EAW also for offences perpetrated before August 2002application of EAW also for offences perpetrated before August 2002

statute of limitations as a ground for optional non-execution of EAWstatute of limitations as a ground for optional non-execution of EAW

amended end of June 2013: amended end of June 2013:

application of EAW only for offences perpetrated after August 2002 application of EAW only for offences perpetrated after August 2002 severe criticism from the European Commission severe criticism from the European Commission

statute of limitations as a ground for mandatory non-execution of statute of limitations as a ground for mandatory non-execution of EAWEAW

amended in October 2013: amended in October 2013:

application of EAW also for offences perpetrated before August application of EAW also for offences perpetrated before August 20022002

II. Jurisprudence of Croatian CourtsII. Jurisprudence of Croatian Courts

Croatian Supreme Court, Kž-eun 11/13, 20 September 2013Croatian Supreme Court, Kž-eun 11/13, 20 September 2013 “ “While executing EAW, the court shall not apply domestic legal provisions While executing EAW, the court shall not apply domestic legal provisions

regarding statute of limitations of criminal prosecution, because the court regarding statute of limitations of criminal prosecution, because the court does not verify the double criminality”.does not verify the double criminality”.

AJC (Article 10) – AJC (Article 10) – verification of double criminality excluded verification of double criminality excluded (Aricle 2(2) of (Aricle 2(2) of Framework Decision on EAW)Framework Decision on EAW)

verification of statute of limitations is also excludedverification of statute of limitations is also excluded

althoughalthough Article 2(4) of Framework Decision: Article 2(4) of Framework Decision: double criminality includes (only) double criminality includes (only)

constituent elements of the offence constituent elements of the offence not statute of limitations not statute of limitations AJC (Article 20(2)) – AJC (Article 20(2)) – statute of limitations as a ground for mandatory non-statute of limitations as a ground for mandatory non-

execution of EAW execution of EAW – – lex loquens, lex loquens, in accordance with Article 4(4) of the in accordance with Article 4(4) of the Framework Decision on EAWFramework Decision on EAW

II. Jurisprudence of Croatian CourtsII. Jurisprudence of Croatian Courts

Statute of limitation – substantive or procedural nature?Statute of limitation – substantive or procedural nature?

Procedural obstacle Procedural obstacle doesn’t affect the double criminality doesn’t affect the double criminality

Statute of limitations Statute of limitations application of domestic law application of domestic law

Croatian Supreme Court, Kž-eun 2/13, 26 July 2013Croatian Supreme Court, Kž-eun 2/13, 26 July 2013

II. Jurisprudence of Croatian CourtsII. Jurisprudence of Croatian Courts

Germany issued EAW for J.P.Germany issued EAW for J.P. a former Yugoslav and Croatian intelligence agenta former Yugoslav and Croatian intelligence agent suspected of participating in organization of murder of S. Đ., Croatian suspected of participating in organization of murder of S. Đ., Croatian

emigrant in Germany, in Munich in 1983emigrant in Germany, in Munich in 1983

Germany issued EAW for Z.M.Germany issued EAW for Z.M. a former Yugoslav and Croatian intelligence agenta former Yugoslav and Croatian intelligence agent suspected of aiding and abetting another in the perpetration of suspected of aiding and abetting another in the perpetration of

murder of S. Đ.murder of S. Đ.

Croatian prosecutorial authorities (State Attorney’s Office): Croatian prosecutorial authorities (State Attorney’s Office): • dismissed crime reports against J.P. and Z.M. – criminal prosecution dismissed crime reports against J.P. and Z.M. – criminal prosecution

was statute-barred according to former Yugoslav Criminal Codewas statute-barred according to former Yugoslav Criminal Code• the county prosecutor forwards the request to competent county courtthe county prosecutor forwards the request to competent county court

II. Jurisprudence of Croatian CourtsII. Jurisprudence of Croatian Courts

EAW against J.P.EAW against J.P.

Zagreb County Court, Kv-eun 2/14, 8 January 2014Zagreb County Court, Kv-eun 2/14, 8 January 2014Croatian Supreme Court, Kž-eun 2/14-5, 17 January 2014Croatian Supreme Court, Kž-eun 2/14-5, 17 January 2014

the court shall not apply domestic legal provisions on statute of limitations of the court shall not apply domestic legal provisions on statute of limitations of

criminal prosecution, because verification of double criminality is excludedcriminal prosecution, because verification of double criminality is excluded

statute of limitations as a ground for mandatory non-execution of EAW - statute of limitations as a ground for mandatory non-execution of EAW - only for offences for which verification of double criminality is not excludedonly for offences for which verification of double criminality is not excluded

statute of limitations – substantive nature statute of limitations – substantive nature integral part of “double integral part of “double criminality”criminality”

II. Jurisprudence of Croatian CourtsII. Jurisprudence of Croatian Courts

EAW against Z.M.EAW against Z.M.

Velika Gorica County Court, Kv-eun 1/14, 15 January 2014Velika Gorica County Court, Kv-eun 1/14, 15 January 2014

refused to execute EAW because of statute of limitationsrefused to execute EAW because of statute of limitations widow of S.Đ. appealedwidow of S.Đ. appealed

Croatian Supreme Court, Kž-eun 5/14-4, Kž-eun 14/14-4, 6 March 2014Croatian 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 accepted the appeal and vacated the decision of Velika Gorica County CourtCourt

III. Decision of Croatian Constitutional CourtIII. Decision of Croatian Constitutional Court

U-III-351/2014, 24 January 2014U-III-351/2014, 24 January 2014

the surrender procedure is not a criminal procedure, but the surrender procedure is not a criminal procedure, but sui sui generis generis procedure procedure

narrow scope of examination of constitutional complaint in front of narrow scope of examination of constitutional complaint in front of the Constitutional Courtthe Constitutional Court

Constitutional Court “is not allowed to question interpretation of Constitutional Court “is not allowed to question interpretation of domestic courts regarding domestic law and its application in domestic courts regarding domestic law and its application in concrete cases of surrender on the basis of EAW, unless there concrete cases of surrender on the basis of EAW, unless there are presented reasons indicating that the assessment of courts in are presented reasons indicating that the assessment of courts in a concrete case was “flagrantly and obviously arbitrary””a concrete case was “flagrantly and obviously arbitrary””

IV. Case-law of the Court of JusticeIV. Case-law of the Court of Justice

Gasparini and others, C-467/04, 28 September 2006Gasparini and others, C-467/04, 28 September 2006

31. „Article 4(4) of the framework decision,..., permits the executing 31. „Article 4(4) of the framework decision,..., permits the executing

judicial authority to refuse to execute a European arrest warrant judicial authority to refuse to execute a European arrest warrant

inter alia where the criminal prosecution of the requested person is inter alia where the criminal prosecution of the requested person is

time-barred according to the law of the executing Member State and time-barred according to the law of the executing Member State and

the acts fall within the jurisdiction of that State under its own criminal the acts fall within the jurisdiction of that State under its own criminal

law. In order for that power to be exercised, a judgment whose law. In order for that power to be exercised, a judgment whose

basis is that a prosecution is time-barred does not have to exist.“basis is that a prosecution is time-barred does not have to exist.“

IV. Case-law of the Court of JusticeIV. Case-law of the Court of Justice

Wolzenburg, C-123/08, 6 October 2009Wolzenburg, C-123/08, 6 October 2009

61. 61.    “ “When implementing Article 4 of Framework DecisionWhen implementing Article 4 of Framework Decision……, the , the

Member States have, of necessity, a certain margin of discretionMember States have, of necessity, a certain margin of discretion””

when implementing optional grounds for non-execution of EAW when implementing optional grounds for non-execution of EAW

as mandatoryas mandatory

V. Comparative perspectiveV. Comparative perspective

Statute of limitation as a ground for Statute of limitation as a ground for mandatory non-execution of mandatory non-execution of EAW: EAW:

Austria, Belgium, Czech Republic, Finland, France, Greece, Italy, Austria, Belgium, Czech Republic, Finland, France, Greece, Italy, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Slovakia, SwedenSlovakia, Sweden

Statute of limitation as a ground for Statute of limitation as a ground for optional non-execution of optional non-execution of EAW:EAW:

Cyprus, Rumania, United Kingdom, Portugal, Spain, Bulgaria, Cyprus, Rumania, United Kingdom, Portugal, Spain, Bulgaria, Denmark, Estonia, Ireland, Latvia, Luxembourg, PolandDenmark, Estonia, Ireland, Latvia, Luxembourg, Poland

VI. ConclusionsVI. Conclusions

Statute of limitations – substantive or procedural nature?Statute of limitations – substantive or procedural nature?

Procedure of surrender as Procedure of surrender as sui generis sui generis procedureprocedure

Rule of law?Rule of law?

Equality of treatment of EU citizens?Equality of treatment of EU citizens?

Thank you!Thank you!

European arrest warrant European arrest warrant

and equality of treatment of EU citizens: and equality of treatment of EU citizens:

Croatian exampleCroatian example

Elizabeta Ivičević KarasElizabeta Ivičević Karas

University of Zagreb, Faculty of LawUniversity of Zagreb, Faculty of Law