The European Arrest Warrant (EAW) and Its Implementation in the Member States of the European

The European Arrest Warrant (EAW) and its Implementation in the Member States of the European Union

International Research Questionnaire

Dr. Katia Šugman

(Slovenia)

1. Constitutional issues

1. Please specify views of doctrine and judicature in your country concerning the legal character of the third pillar framework decisions (FD) issued on the basis of art. 34.2 TUE

Judicature

Currently, there are no domestic judicial decisions on the legal character of the FD.

Doctrine

In legal doctrine, the “inter-governmental” nature of the “third pillar” EU law is beyond any doubt, the main argument being the consensual character of decision-making process.

As to the effect of the FD, it is necessary to note that prior the accession to EU on 1st May 2004, Slovenian constitution was amended, introducing Article 3a. It, inter alia, states that

“Legal acts and decisions adopted within international organizations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organizations.” [1]

Therefore, article 34(2) of the TUE is relevant in its entirety, when stating that

“/.../ Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect.”

In criminal matters, the contents of FD will be typically introduced into the domestic legal system in a form of law, passed by the Slovenian parliament.

1. Please indicate the position of the doctrine and courts in your country concerning the relation between the domestic norms being a result of implementation of framework decisions – and conventions on European cooperation in criminal matters, accepted within the EU/Council of Europe?

After the contents of FD are introduced (implemented) into the Slovenian legal system, they are considered a norm of domestic origin. When discussing the relations between the implementation of a FD and conventions, that is, international treaties, the relevant question must be the position of international treaties in the domestic legal system.

According to article 8 of the Slovenian constitution,

“Laws and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.”

The doctrine and the Constitutional Court (CC) have made it clear, that the stated article, along with other relevant provisions (Art. 157: “Laws must be in conformity with generally accepted principles of international law and with valid treaties ratified by the National Assembly...”) establish a hierarchy of legal acts, the constitution being of the highest rank, followed immediately by the treaties (ratified by the National Assembly), followed in turn by laws.

Therefore, an international treaty between EU or CoE states can theoretically be in conflict with laws, implementing a FD. In principle, there are two available solutions (disregarding any intervention on the part of the EU or other int’l bodies): (1.) either Slovenia passes the laws that comply with the ratified treaty – and risks failure in implementing the FD, or (2.) Slovenia refuses to pass the laws in compliance with the int’l treaty and risks being in breach of its int’l obligation.

1. Is the doctrine and judicature in your country opting for “pro-european” (“European – friendly”), interpretation of domestic law, including constitutional law? Is it also applied as regards third pillar instruments?

Judicature

Until this moment, the judiciary (regular or the Constitutional Court) have not shown any signs of opting for “anti-european” interpretation. An overview of Slovenian court practice shows that courts – although not in criminal matters – have no trouble in accepting the supremacy of EC law (“first pillar”), especially when it comes to the recognition and execution of foreign judgments in civil and commercial matters, in matters of asylum or in matters of intellectual property law. Constitutional Court, too, has recognized the nature of the EU legal order. In cases No. Up 328/04 and No. U-I-186/04, the Constitutional Court referred both to Art. 249 of the EC treaty and the relevant ECJ decisions (Costa v. ENEL etc.) in recognizing the effects of regulations, putting aside legal rules of domestic origin. Issues of conflict between first pillar mechanisms and Slovenian constitution have as yet not been a matter of CONSTITUTIONAL COURT rulings.

As to the “third pillar instruments”, there are few relevant court decisions.

In cases of surrender procedure before Slovenian courts, the Supreme Court refuses to accept as admissible the filing of so-called requests for the protection of legality, an extraordinary legal remedy aimed at rectifying any errors in law, against (1) decisions on detention of the requested person during the proceedings under EAW implementation act and (2) against decisions on surrender.

There have been attempts to challenge the constitutionality of the law implementing the Framework Decision on EAW (hereinafter referred to as FD EAW). In a particular case, the complainant was a suspect detained and facing surrender to Italy. The challenge was not aimed at the FD but at the implementing act – as was in the case of Germany and Poland. The core of the argument was, essentially, that the implementing act was in breach of the constitutionally agreed right to fair trial before Slovenia’s courts, since according to EAW law Slovenia’s courts are not empowered to decide on the merits of the warrant. Constitutional Court refused to rule on the issue due to the fact that the complainant has been successfully surrendered before Constitutional Court managed to decide the case. CC found that after the successful surrender to Italy the complainant fails to maintain any legal interest in obtaining CC’s ruling, since no improvement of his legal position can be expected after his surrender. (Decision No. U-I-14/06)

Responding to a somewhat different complaint, CC refused to rule on the issue of fulfillment of conditions for surrender, finding that the complainant was arguing errors of fact. These, however, are not a matter of adjudication before CC. (Decision no. Up 261/06)

Doctrine

We can conclude that at the moment, no serious challenges to the “pro-European” application or interpretation of domestic law can be noted. This is not to say that – especially in legal doctrine – some fairly critical views are present. EAW has been severely criticized. Besides the before mentioned lack of any judicial control on the merits of the warrant, theoreticians find the EAW lacking in view of:

-failure to properly determine (lex certa) the offences to which the double criminality condition no longer applies;

-failure explicitly to take into account potential breaches of human rights as reasons to refuse the surrender, thus running contrary to the ECHR judicature.

On a more general level, the mentioned article 3a of the Slovenian constitution, stating in para. 1 that

“/.../ Slovenia may transfer the exercise of part of its sovereign rights to international organizations which are based on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law /../”.

has been interpreted – on the basis of discussions when drafting the cited paragraph – so as to provide the possibility for the CC to interfere in cases where a breach of human rights occurs. Others view the paragraph as not applicable in individual cases, but solely when the EU as a whole predominantly fails to respect human rights.

1. What is the influence of ECJ judicial decisions on the implementation of domestic law (e.g. Pupino case)?

Currently, it is not possible to estimate the influence of ECJ decisions. Available resources (digital database of judicial decisions) show no reference to the mentioned case, or other relevant cases (e.g. Brügge or Gözütuk)

1. Is interpretation of domestic law implementing framework decisions in your country possible solely by referring to the wording or inhalt of the framework decisions? Is it possible also when a framework decision is not yet implemented into the domestic legal order?

In line with the above stated articles of Slovenian Constitution and taking into account that ECJ decisions are relevant regarding the nature of EU law and its extent, it is reasonable to conclude that Slovenian courts will have to interpret domestic law – including any act, implementing FDs – so that it follows EU law as much as possible. That might also be the case when an FD is not yet implemented in Slovenia’s domestic legal system.

The general rule, stated by ECJ in Pupino case, regarding the interpretation of domestic law in case of non-implemented FD’s, is very much relevant. However, since no rulings citing the Pupino case have been found in available databases, its effect on Slovenian judicature remains to be seen.

1. To what scope, if at all, is it possible to ask EJC preliminary questions as refers to the interpretation of framework decisions (art. 35 TUE). Can such question be asked by constitutional court (or equivalent)?

Slovenia has issued the declaration accepting the jurisdiction under Article 35 TEU. Under Slovenia’s Judiciary Act, preliminary questions regarding the validity and interpretation of EU law are, in principle, optional, if the court considers that its decision depends on the issue of validity/intepretation of EU law. Referring a preliminary question is mandatory for the Supreme Court and other courts of last resort.

Slovenia’s Constitutional court is not considered a part of the judiciary. The constitution clearly designated the Supreme Court as the highest court in the state. The cited Judiciary Act does not, therefore, apply to the Constitutional Court. It remains unlikely that the Constitutional Court will refer any preliminary questions.

1. What is the technical form of implementation of the framework decision on EAW in your country (e.g. separate law, a part of the CCP, separate from extradition provisions, other ways?)? When exactly did the law implementing the framework decision enter into force?

After an extensive debate on the question of whether Slovenia should implement the FD EAW in the form of a special statute or as an amendment of the CCP – since Slovenian national law already contains provisions on that topic – the decision was passed that the best solution is to pass the special act on that question. Therefore, the “Act on the European Arrest Warrant and Surrender Procedures Between Member States” ((hereinafter referred to as EAWSP) has been adopted by the National Assembly on March 26 2004 (O. J. RS no. 37/2004). The Act came into force on the day of accession (May 1st 2004).

The Act provides for the subsidiary use of the CCP concerning the procedure of extradition and concerning the confiscation of the property benefits acquired though the commission of a criminal offence. The CCP’s provisions are also still in force regarding the extradition with third states. The relationship between the CCP and the Act on the Procedure of the Extradition of the Accused and Convicted Persons among the Member States of the EU is the one between lex generalis and lex specialis; therefore lex specialis prevails against lex generalis (lex specialis generalis derogat lex generalis).[2]

1. Was the law on implementation of the framework decision and the framework decision itself subject of proceedings of the constitutional court in your country?

Yes. The Constitutional Court recently (U-I-14/06, from 22. 6. 2006) decided the case regarding the EAW. The applicant (the requested person and his attorney) claimed that the EAWSP was not in accordance with the Slovenian Constitution. Unfortunately, the application (the so called Request for assessment of the constitutionality and legality of a law) was rejected by the CC since the applicant (the requested person) was already surrendered to the issuing Member State. Article 24 of the Constitutional Court Act (CCA) namely provides that only a person holding a so-called ‘legal interest’ may file a request. Since the applicant was already surrendered the CC assessed that he/she has no legal interest in the case and therefore rejected the Request.

1. Is the surrender procedure according to the EAW understood as a form of extradition or is it treated as a separate legal instrument?

Slovenian legal system recognises the concept of “extradition” and “surrender” as two separate entities. The term surrender was primarily introduced through statues governing the cooperation between RS and the international criminal courts. It was defined simply as a measure that provides for handing over the person in question which is distinctly different from extradition.

With the accession to the EU, the law on implementation of FD EAW entered into force, adding a new dimension to the term surrender in Slovenian legal system. If prior to the implementation of FD EAW the term surrender was used solely regarding the handing over to international judicial bodies (since the constitution only prohibited extradition to other states!), it currently applies also to handing over suspects to EU Member States in accordance with the provisions of law on EAW.

1. The implementation of the FD on the EAW in the domestic legal order

1. Are there differences between the way of implementation of the EAW in your country and the “pattern” provided by the framework decision?

There are slight differences – see the description below.

1. If so, do the differences concern:

- the negative premises (compulsorily and optional) of surrender?

mandatory

amnesty

According to Slovenian law the surrender of a requested person must be refused if a warrant has been issued for a criminal offence covered by an amnesty in the Republic of Slovenia, if a domestic court be competent to prosecute (Art. 12(1a) EAWSP).

Ne bis in idem

The surrender must be refused if the warrant has been issued for a criminal offence for which the requested person has already been finally acquitted or convicted in Slovenia, in another Member State (or in a third country), on condition that, in the event that a sentence was passed that sentence has been served or is being served, or that according to the legislation of the country that passed the sentence, the sentence can no longer be executed (Art. 12(1b) EAWSP - (ne bis in idem)). The surrender must as well be refused in case the warrant has been issued for a criminal offence for which criminal proceedings against the requested person in Slovenia were finally halted or the charge finally rejected, or if the competent state prosecutor has rejected the criminal charge because the suspect has met the agreed conditions in the settlement procedure or because he has fulfilled the tasks imposed to lessen or rectify the damaging consequences of the criminal offence in accordance with the instructions of the state prosecutor and with the provisions of the act regulating the criminal procedure (Art. 12(1c) EAWSP).

Age limit

The surrender must be refused if the warrant has been issued for a criminal offence committed by a requested person who is under the Slovenian domestic age limit for criminal responsibility (Art. 12(1č) EAWSP) – this is 14 years of age (Art. ). This ground will certainly prove an obstacle to surrender, since the age limit for criminal responsibility is substantially lower in some of the Member States.

Slovenian legislator did make some of the optional grounds from Art. 4 FWD mandatory. Besides the grounds mentioned above, there are also other grounds for mandatory non execution: (1) if the warrant has been issued for a criminal offence for which prosecution of the execution of a sentence have become statute-barred, if a domestic court is competent to prosecute or to execute the sentence (Art. 12(1d) EAWSP); (2) if the warrant has been issued for a criminal offence that is not punishable in domestic criminal legislation and the exceptions from the second paragraph of Art. 2 FWD may not be applied (Art. 12(1e) EAWSP; (3) if criminal proceedings are taking place against a requested person in Slovenia for the same criminal offence for which the warrant was issued and that criminal offence was committed against the Republic of Slovenia or against a citizen Slovenia but no insurance has been given for enforcement of the pecuniary claim of the victim (Art. 12(1f) EAWSP; (4) if there are reasonable grounds to concluding that the warrant was issued for the purpose of instigating criminal prosecution against and sentencing the requested person because their sex, race, faith, ethnic origin, nationality, language, political conviction or sexual orientation, or if their position would be made significantly worse for these reasons (Art. 12(1g) EAWSP); and if the issuing judicial authority has not given certain assurances, defined in Art. 14 EAWSP (Art. 12(1h) EAWSP).

optional

The surrender of a requested person may be refused (Art. 13. EAWSP): (a) if criminal proceedings are taking place against the requested person in the Republic of Slovenia for the same criminal offence for which the warrant was issued and if it would be clearly be easier for criminal proceedings to be held in Slovenia; (b) if a request for investigation has been rejected in Slovenia in a final decision because no reasonable grounds were adduced for suspecting that the requested person had committed the criminal offence for which the warrant was issued; (c) if the warrant has been issued for the execution of a custodial sentence and the requested person is a citizen of Slovenia of of a MS resident on the territory of Slovenia, or a foreign person with a permit for permanent residence in Slovania, id the requested person so wishes and provided the domestic court undertakes to execute the judgement of the court of the issuing MS in accordance with domestic law; (d) if the warrant has been issued for criminal offences that, according to domestic criminal law, are dealt with as if they have been committed wholly or in part in Slovenia; (e) if the warrant has been issued for criminal offences committed outside the territory of the issuing MS but domestic law does not permit prosecution for the same offence when committed outside the territory of Slovenia.