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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?