Enforcement of judgments and judicial acts: Modalities of execution in the international level context.
The title of the lecture is too vast to tackle in one setting if one were to consider both criminal and civil law jurisdictions. Consequently, I will be limiting myself only to matters of criminal law.
The general consensus in international law is that a state does not have an obligation to surrender an alleged criminal to a foreign state if this so demands. According to the principle of sovereignty, every state has legal authority over the people within its borders. However, most countries “desire” the right to demand criminals from other countries this resulting in either bilateral or multilateral agreements amongst themselves, such as extradition treaties or enforcement of judicial acts treaties. This “desire” is grounded on the necessity to have justice done.
Extradition is a formal process by which a criminal suspect held by one government is handed over to another government for trial, or if the trial has been held and the suspect was found guilty, to serve his/her sentence.
When a person is sought in order to stand trial in another country, an arrest warrant is forwarded for execution to the country where that person is held.
When the trial has been held and a sentence is given, a request to surrender the person in order to serve the sentence is forwarded to the country where that person is held. In this second case the request to surrender is accompanied by the relevant court judgment, which needs to be enforced.
Both the arrest warrant or a court judgment are judicial acts that need to be enforced, and the enforcement will be possible only through carrying our extradition procedures or through other procedures as agreed by the countries involved.
Extradition treaties:
No country in the world has an extradition treaty with all other countries. An extradition treaty spells out the terms of an extradition. It includes a list of crimes for which a person can be extradited, or covers all with descriptions such as: “any crime for which a prison term could exceed …(x)… years”. It is usually reciprocal in terms of conditions, but there are exceptions.
In general, an extradition treaty requires that a country seeking extradition be able to show that:
The crime is serious;
There exists a prima facie case against the person sought;
The act in question qualifies as crime in both countries (double criminality principle);
The human rights and freedoms of the person sought will be safeguarded in the recipient country;
Many countries reserve the right to refuse to extradite an individual if, that person is a national or if the receiving country has not abolished the capital punishment or if, in the government’s opinion, they are being sought for a political crime. Restrictions are normally clearly spelled out in the extradition treaties.
On the basis of an extradition treaty one state may request from another state to obtain evidence or perform other judicial action on behalf of the requesting state, and each of the states (signatory to the treaty) shall recognize judgments passed by the courts of another contracting state and shall enforce them within its territory if such judgments are final and enforceable.
Enforcement of decisions and judicial acts on the EU level ( the European Arrest Warrant)
One Treaty of importance related to the enforcement of decisions and judicial acts in the criminal field within the EU, is the Council Framework Decision of 13 June 2002, “on the European Arrest Warrant and the Surrender Procedures between Member States” [by Member States it is meant Member States of the European Union]. This Treaty has the objective and aim of replacing the traditional international extradition system by the concept of a closer European co-operation in the form of a European Arrest Warrant or Order, with the object of simplifying and speeding up the relevant procedures. It does this by attempting to avoid the cumbersome political and administrative procedure normally associated with traditional extradition procedure and to replace them by a purely judicial mechanism. The EAW has come into force from 1 January 2004. Member States have taken necessary measures to comply with this Framework Decision.
The EAW procedures are indeed based on mutual trust and recognition of the individual Member States judicial decision to issue an arrest warrant in one Member State and to enforce it in another Member State territory. The concern is whether the trust of Member States in the judicial acts and systems of each other is real and blind or if it is just an illusion. Lawyers and other practitioners from various Member States find this “trust” alien to their instincts and have continuously expressed concerns as to the compliance of other Member States with the necessary requirements for the safeguard of fundamental and internationally accepted human rights principles. There are national concerns of the “older” Member States whether the “new” incoming states have fully combated corruption in their own domestic judicial systems or, in general, whether these established systems are at an equal level with their own familiar established one.
The principle of recognition of judicial acts or judgments should mean approximation of legislation in the field of procedural and substantive criminal law. In order to prevent and settle conflicts of jurisdiction, it is necessary to establish rules and procedures in order to ensure such recognition of judgments and judicial decisions. It is also necessary to encourage the training of the judiciary and the judicial stuff. It should be aimed at establishing minimum rules concerning the mutual admissibility of evidence, the definition of the rights and freedoms of individuals in the criminal procedure, the rights of the victims of crime. Minimum rules need to be established regarding the definition of criminal offences and sanctions in the areas of particularly serious crimes, with cross-border dimensions. Such crimes are foreseen, for example in the Council Framework Decision of 13 June 2002, “on the European Arrest Warrant and the Surrender Procedures between Member States”. However, the EAW law has been criticized for lack of full definition of the criminal acts prescribed in the list of criminal acts of Article 2.2 of the Framework Decision.
Article 2.2 states:
“The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a EAW:
participation in a criminal organization,
terrorism,
trafficking in human beings,
sexual exploitation of children and child pornography,
illicit trafficking in narcotic drugs and psychotropic substances,
illicit trafficking in weapons, munitions and explosives,
corruption,
fraud, including that affecting the financial interests of the European communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests,
laundering of the proceeds of crime,
counterfeiting currency, including of the euro,
computer related crime,
environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
facilitation of unauthorized entry and residence,
murder, grievous bodily injury,
illicit trade in human organs and tissue,
kidnapping, illegal restraint and hostage-taking,
racism and xenophobia,
organized or armed robbery,
illicit trafficking in cultural goods, including antiques and works of art,
swindling,
racketeering and extortion,
counterfeiting and piracy of products,
forgery of administrative documents and trafficking therein,
forgery of means of payment,
illicit trafficking in hormonal substances and other growth promoters,
illicit trafficking in nuclear or radioactive materials,
trafficking in stolen vehicles,
rape,
arson,
crimes within the jurisdiction of the International Criminal Court,
unlawful seizure of aircraft/ships,
sabotage.”
The problem here lies in the fact that, apart from those crimes whose definition would be identical in every jurisdiction, other crimes may bind themselves to different interpretation in different Member States. Therefore, the lack of definition of the said criminal acts in the Framework Decision may raise major issues in a European Union context with such a wide variety of criminal laws. As expressed by one of the Experts of the British Section of the International Commission of Jurists:
“The historical and cultural frameworks in different countries mean that democratically elected governments have reached very different positions in relation to a number of what could be described as “ethical issues”. There is no Europe wide consensus as to the criminality or acceptability of many types of conduct such as abortion, euthanasia, soft drug use and those relating to freedom of expression like blasphemy and defamation”.
I am of the opinion and would prefer that the list of crimes contained in Article 2/2 of the Framework Decision be completed with ad hoc definitions of each and every crime to facilitate consistent interpretation throughout the Member States and in this way ensure recognition and enforcement of judicial acts issued in relation to such criminal offences.
Enforcement of judicial acts at the Council of Europe level:
The enforcement of a judgment is regarded as an integral part of the fundamental human right to a fair trial in a reasonable time (see Article 6 of the European Convention on Human Rights (ECHR)
The criminal law of the member States of the Council of Europe is also governed, with some few exceptions, by the classical concept of national sovereignty. Each State takes indeed as its basis the principle of territoriality and the effect of its judicial decisions does not in general extend beyond its frontiers. This situation does not fully meet present-day requirements. If society is to be effectively protected, account must be taken of trends in crime. The problems are, like many others, becoming international, largely owing to the considerable development of economic resources, improved means of transport and communication and to the consequent mobility of populations.
Moreover, penal policy has come to lay greater emphasis upon treatment of the offender. It would seem that re-socialization is often considerably facilitated when the sanctions imposed upon the offender are carried out in his State of residence rather than in the State of the offence and judgment. This policy is also rooted in humane considerations, in particular the understanding of the detrimental influences upon a prisoner of difficulties in communication by reason of language barriers, alienation from local culture and habits and the absence of contact with relatives and friends.
For these reasons determined efforts have been made to regulate the question of extending the validity of foreign judgments. In recent years regional arrangements between sovereign States have broken down barriers created by long and established traditions and by legal concepts now considered inadequate.
International collaboration in criminal matters takes several forms:
Extradition, the traditional example of international co-operation by which a person is transferred from one State to another in order to stand trial or for enforcement of sanctions in the latter;
Mutual legal assistance, by which is understood the communication of relevant information and evidence from one State to another;
Enforcement in one State of a criminal judgment rendered in another;
In 1957 and in 1959 the Council of Europe regulated the first two methods of legal co-operation by opening for signature the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters respectively. The Convention related to the third method of cooperation is a further step towards the ultimate goal of ensuring full international co-operation in criminal matters between member States of the Council of Europe.
The European Convention on the International Validity of Criminal Judgments (1970 signed and ratified recently) aimed at avoiding problems, which were in the way of the states members of the Council of Europe when enforcing judgments at international level. Some of these issues were as follows:
National sovereignty upon which the territoriality of legislative and judicial authority in penal matters is traditionally based should no longer have been an obstacle to the recognition of the legal effects of foreign judgments. Consideration is given to the mutual confidence between member states of the Council of Europe, to the development of criminality in modern society and to the necessity of combating it by collaboration across frontiers.
Amnesty should under certain conditions preclude recognition of a foreign judgment (Art. 12);
The proceedings in both States should comply with the provisions of the European Convention on Human Rights (Art. 6/a of the said enforcement Convention). Though it is not expressly stated in the text of this Convention, it would be unthinkable to acknowledge the outcome of a trial as a valid judgment if it fell short of basic democratic requirements nowadays. This is one of the main prerequisites for acceptance of an enforcement request.
The problems faced in the cases of judgments rendered in absentia are dealt with in Section 3 (Arts. 21 to 30) of the Convention. There are wide differences in national legislations with regard to judgments in absentia. It is incontestable that these decisions do not offer the same guarantees to the accused person as decisions pronounced after hearing the accused in court. First, the gathering, verification and interpretation of evidence are rendered difficult by the absence of the accused person during the investigation and the court proceedings. Second, the absence of the offender prevents the sentencing judge from taking account of his special needs and from individualizing the penalty. It is not possible to deal with those judgments rendered in absentia in the same way as with other judgments. Judgments rendered in absentia represented a large proportion of judgments whose enforcement is not possible in the sentencing State and which therefore desirably should be enforced in another State. The only solution is to make the general rules also applicable to judgments rendered in absentia and at the same time to establish a special system common to all Contracting States granting to the person sentenced in absentia the right to be heard before the enforcement of the sanction.
Except as provided for in Section 3, judgments rendered in absentia are subject to the same rules of enforcement as those applied for judgments rendered after a hearing of the parties. There are, however, important differences. With judgments rendered after a hearing enforcement may be requested only insofar as the judgment is final and enforceable. Enforcement of judgments rendered in absentia may, however, be requested as soon as they have been pronounced.