THEMIS Grand Final Case Study

1

THEMIS Grand Final Case Study

Germany 3 – Christoph Heinrich, Christian Rauch and Axel Wiehrer

1. The competence of Eurojust

1.1. Competence according to Art. 16(2) EAW decision

Art.16(1)European arrest warrant (EAW) decision[1] regularizes the situation in which a judicial authority has to choose which of two or more EAWs for the same person shall be executed.When making such a choice, the authority may seek the advice of Eurojustaccording to Art.16(2)EAW decision. In contrast, in the case of Mr. Lubjojevic not two EAWs have been issued, but oneEAW and an arrest warrant by a third country. This situation is dealt with in Art.16(3)EAW decision.Does it follow from the positioning in two subsequent paragraphs thatArt.16(2)EAW decision establishes the competence of Eurojust for situations like the one of Mr. Lubjojevic, too? No. The wording of Art.16(2)EAW decision deals only with “the choice referred to in paragraph 1”of Art.16EAW decision. If the Council had wanted to establish the competence of Eurojust in both situations, it would have been logical to describe the situations in the first two paragraphs and then, in a third paragraph, refer to them. Such a structureis used by the decision in Art.16(4)EAW (“This Article shall […]”). Consequently, it is hardly conceivable that the Council wanted to establish the competence of Eurojust for a conflict between a EAW and an arrest warrant by a third country in Art.16 EAW decision.

1.2. Competence according to Art. 3and 4 Eurojust decision

1.2.1.Competence ratione materiae

The competence of Eurojust corresponds with the competence of Europol.[2] It covers

“organised crime, terrorism and other forms of serious crime […] affecting two or more Member States in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences.”[3]

The list of such crimes contains “organised robbery” as well as “murder” and“grievous bodily injury”.[4]

–“organised robbery”

Mr. Lubjojevic committed a robbery, but does it amount to an “organised robbery”? The German wording of the decision (”Raub in organisierter Form“)suggests that “organised” is not to be interpreted as the opposite of “spontaneous” but refers to a criminal structure, thus organised crime. The question, therefore is, if the facts suggest that the robberies Mr. Lubjojevic is accused of were committed in the context of a criminal organisation?

“‘[C]riminal organisation’ means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences which are punishable by deprivation of liberty or a detention order of a maximum of at least four years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit”[5]

The robberies were directed at banks and hence intended to obtain the financial benefits stored at bank coffers and other deposits. They were carried out by three persons in Toulouse and four persons in Osijek, thus by more than two persons. The robbers face sentences of more than four years. The presence of a structured association is also suggested by the facts that the robbers were furnished with firearms and managed to hide large amounts of money after the robberies in Toulouse. Given these facts, one can assume that the robberies were carried out by a criminal organization. The crimes of Mr. Lubjojevic are therefore to be considered as “organised robbery”.

–“murder, grievous bodily injury“

During the robbery in Osijek, Mr. Lubjojevic and his accomplices fired several shots at policemen. One suffered serious chest injuries, the other serious head injuries. Such injuries are particularly perilous and may be considered as grievous bodily injuries. The competent Croatian criminal court assessed them as two crimes of attempted murder, another form of serious crime.

–“affecting two or more Member States […]”

Even though the robberies themselves took only place in one Member State, i.e. France, two Member States are affected: The raison d’être of the criterion[6] is to preclude intrusions of Europol/Eurojust to purely national affairs. Apart from that, the expression has to be interpreted widely to safeguard the interest of Member States in judicial coordination and assistance, including a case like the one of Mr. Lubjojevic in which a criminal is arrested in a country pursuant to a EAW by another country.

As a result, according to Art. 4(1)(a) Eurojust decision[7], Eurojust’s competence covers the types of crime which Mr. Lubjojevic is accused of. In addition, Eurojust is competent according to Art. 4(2) as EU country A has issued a request.

1.2.2.Competence for the requested task

Is Eurojust competent for the type of assistance demanded by EU country A?

–Art. 3(1) Eurojust decision

In general, Eurojust may assist “[i]n the context of investigations and prosecutions,concerning two or more Member States, of criminal behavior referred to in Art.4 in relation to serious crime, particularlywhen it is organized”.Such a situation is present:[8]EU country A has requested assistance on the surrender of a person charged with a crime, thus in the context of an investigation/prosecution. As already established, this investigation/prosecution is concerning two Member States.The seriousness of the crimes is indicated by their listing in the Annex to the Europol decision.

The contexts in which Eurojust provides assistance are further specified in a list of Eurojust objectives in the same paragraph. One of them is to “improve cooperation between the competent authorities of the Member States, in particular by facilitating the execution of requests for, and decisions on, judicial cooperation, including regarding instruments giving effects to the principle of mutual recognition”[9]. The request of EU country A falls within the scope of that provision: The request concerns the precedence between two arrest warrants of which one is a EAW. EAWsare issued in the context of judicial cooperation between Member States[10]; they are based on the principle of mutual recognition [11]. Advice given by Eurojust would facilitate the decision of EU country A’s judicial authorities on the execution of the EAW and thus would “improve cooperation between the competent authorities of the Member States”.Furthermore, an answer to the request of EU country A would implement the other two (alternative) objectives of Eurojust, too: A decision on the precedence may be regarded as a form of “coordination between”[12] and “support”[13] for “the competent authorities of theMember States”, i.e. EU country A and France. As a result, Eurojust is competent to advice EU country A on the case.

–Art. 3(2) Eurojust decision

Art. 3(2) Eurojust decision presupposes that the investigation/prosecutionconcerns onlythe requesting Member State and a non-Member State. Consequently, it does not stipulate the competence of Eurojust if one shares the view[14] that the case of Mr. Lubjojevicconcerns two Member States (France and EU country A). If one dissents, Art. 3(2) Eurojust applies to the case as Eurojust has concluded “an agreement establishing cooperation” with the Republic of Croatia[15] and EU country Ademands assistance. The interplay between Art. 3(1) and Art. 3(2) Eurojust decision renders the question if EU country A is “concerned” by the investigation irrelevant: If it is concerned, Art. 3(1) applies; if it is not concerned, Art. 3(2) applies; Eurojust is competent for the requested task in any case.

1.3. Result

Eurojust is competent to give EU country A an advice to the solution of Mr. Lubjojevic’s case.

2. The Precedence in the Surrender Requests for Mr. Lubjojevic

We first examineif EU country A has legal obligations regarding a surrender of Mr. Lubjojevictowards France or Croatia. After having established that such obligations exist, we solve the resulting conflict.

2.1. Extradition obligation towards France

Such an extradition obligation exists if a valid EAW is present. A EAW may only be issued for

“acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum periodof at least 12 months or, where a sentence has been passed ora detention order has been made, for sentences of at least four months”.[16]

Mr. Lubjojevic was sentenced in France for two counts of aggravated robbery to a term of 9 years imprisonment. Consequently, a EAW may be issued for these acts.A verification of double criminality is not necessary:[17] The crime amounts to “armed robbery” – as firearms were used – and “organised robbery”[18]; it resulted in a sentence of more than three years. Furthermore, no grounds for mandatory or optional non-execution of the EAW are present.

As a result, EU country A has an obligation towards France to surrender Mr. Lubjojevic which it has to fulfill within a period of 60 days.[19]

2.2. Extradition obligation towards Croatia

EU country A and Croatia are both Contracting Parties to the European Convention on Extradition.[20] Croatia has a right to demand the surrender if Mr. Lubjojevic is accused of an extraditable offence.

First, there is the question, whether there are several separate offences each of which is punishable under the laws of the requesting Party and the requested Party by deprivation of liberty, Art. 2(2) of the European Convention on Extradition[21]. On the one hand, there is the penalty for the attempted aggravated robbery and two crimes of attempted murder from a Croatian criminal court in September 2008. On the other hand, according to Croatian authorities, Mr. Lubjojevic should have committed a crime of evasion. That can be regarded as two separate offences. In Croatia, the crime of evasion has an abstract penalty of three years of imprisonment and therefore is punishable under Croatian law. But there is no information about the criminal liability of evasion in Country A.

Anyhow, there is no need to decide on this problem as Art. 2(1) of the European Convention on Extradition[22] states that the extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months. In the decision of the Croatian criminal court from September 2008, Mr. Lubjojevic was sentenced to a penalty of 12 years of imprisonment. Therefore, the awarded punishment exceeds a period of four months which means that there is an extraditable offence.Reasons of exclusion (Art. 4 – 11 of the European Convention on Extradition[23]) are not present.

Consequently, EU country A faces an obligation towards Croatia to surrender Mr. Lubjojevic.

2.3. The Precedence in the obligations

According to Art.16(3)EAW, the decision on whether the EAW or the extradition request takes precedence shall be taken “with due consideration of all the circumstances, in particular those referred to in Art. 16(1) EAW decision and those mentioned in the applicable convention.”

2.3.1. Circumstances mentioned in Art. 16(1) EAW decision

-“the relative seriousness of the offences and place of the offences”

The seriousness of a crime can be appreciated by its scale, significance and consequences as well as the penalty imposed for committing it.[24]

In Croatia, Mr. Lubjojevic acted with three other persons. They showed firearms in the bank. They acquired an amount of around € 150.500. When the offenders tried to leave the bank, they were intercepted by the police. In a following exchange of shots, during which Mr. Lubjojevic fired several shots himself, one of the robbers was killed and two policemen were seriously injured (one officer in the chest, the other officer in the head). Mr. Lubjojevic managed to get away with around €80.000.

In France, there were two robberies in which Mr. Lubjojevic participated together with two other offenders. They also carried firearms with them, but did not use them. Nobody was hurt. The amount involved in the robberies was altogether € 1.123.010 (€ 457.780 from the first robbery and € 665.230 from the second one).

Taking everything into account, the relative seriousness of the committed crimes in Croatia outweighs the seriousness of those committed in France.

On the one hand, the accrued and still existing financial damage in France amounts altogether to € 1.123.010. In Croatia, the robbery generated a sum of € 150.500 and an amount of about €70.500 was retrieved right after the offence.But on the other hand, in Croatia, there was not only a financial damage but also a dead and two heavily wounded persons and apart from the robbery, Mr. Lubjojevic also escaped out of prison.

These differences are demonstrated by the respective sentences. In France, Mr. Lubjojevic got a sentence of 9 years imprisonment following his conviction on two counts of aggravated robbery in January 2009. In Croatia, he was sentenced to a penalty of 12 years of imprisonment in March 2008 on counts of attempted aggravated robbery and two crimes of attempted murder and due to him being accused of the crime of evasion, he faces another penalty up to three years of imprisonment. As a result, in Croatia, he faces a prison sentence up to 15 years in total.

Therefore, the seriousness of the crimes committed in Croatia outweighs those committed in France.

-“the respective dates of the” arrest warrants

Croatia issued its internal arrest warrant against Mr. Lubjojevic in December 2009 whereas the EAW against him had already been issued in France in January 2009. Consequently, the EAW has priority.

–“whether the warrant has been issued forthe purposes of prosecution or for execution of a custodialsentence or detention order”

The French EAWaims at the execution of a sentence.The Croatian arrest warrant aims at the execution of a sentence and theprosecution ofan alleged crime of evasion. Croatia, therefore, has a double interest which outweighs the interest of France.

2.3.2. Circumstances mentioned in the applicable convention

The applicable convention is the European Convention on Extradition[25]. Its Art.17 stipulates:

“if extradition is requested concurrently by more than one State, either for the same offence or for different offences, the requested Party shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person claimed and the possibility of subsequent extradition to another State.”

The criteria “relative seriousness and place of commission of the offences” and “respective dates of the requests” have already been dealt with.

-Nationality of the person

Mr. Lubjojevic is a Croatian citizen.This advocates a surrender to Croatia.

-Possibility of subsequent extradition to another state

Delivered to France, it is possible that Mr. Lubjojevic will be extradited to Croatia to fulfill his prison sentence. Even though he escaped from a Croatian prison once that does not mean on the contrary that he will not be able to serve a further prison time in that country.On the other hand, being surrendered to Croatia, it is rather improbable that Mr. Lubjojevic will be transferred to France. There is no danger of another prosecution in France, he has no connection to that country and the only reason why there should be an extradition from Croatia to France would be to supervise the enforcement of the nine year prison sentence from January 2009.

To conclude, a subsequent extradition from France to Croatia is not that unlikely whereas an extradition from Croatia to France is not to be expected.

-Other circumstances

Mr. Lubjojevic was born in Croatia. His last known residence was there, too. He has been convicted on several occasions in Croatia for crimes of theft and other minor offences. In 1997, he was sentenced for one and a half years and in 2003, he was sentenced for three years, both for theft. He had already served these sentences in Croatia before he committed all of the robberies. As his residence until April 2007 was Split, Croatia, he served these sentences in Croatia as well. In contrast, he has no known connection to France except for the two crimes he committed in Toulouse. This is another criterion advocating a surrender to Croatia.

2.4. Result

We recommend the surrender of Mr. Lubjojevic to Croatia.

[1] Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (EAW decision), O.J.2002, L 190/1.

[2]Art.4(1) Council Decision 2002/187/JHA of 28 Feb. 2002setting up Eurojust with a view to reinforcing the fight against serious crime (Eurojust decision), O.J. 2002, L 63/1, as amended by Council Decision 2003/659/JHA of 18June2003, O.J. 2003, L 245/44, and Council Decision 2009/426/JHA of 16Dec. 2008, O.J. 2009, L 138/14.

[3]Art. 4(1) Council Decision 2009/371/JHAof 6 April 2009 establishing the European Police Office (Europol) (Europol decision), O.J. 2009, L 121/37.

[4]Annex to Europol Decision, cited supra note 3.

[5]Art. 1 Council Framework Decision 2008/841/JHA of 24Oct.2008on the fight against organised crime, O.J.2008, L 300/42.It also defines that “‘structured association’ means an association that is not randomly formed for the immediate commission of an offence, nor does it need to have formally defined roles for its members,continuity of its membership, or a developed structure.” Similar definitions for both notions are laid down in Art.1 Joint Action on making it a criminal offence to participate in a criminal organization in the Member States of the European Union, O.J. 1998, L 351/1, and Art. 2 Convention against Transnational Organized Crime adopted by the General Assembly of the United Nations on 15November2000 (UN OC Convention).

[6]The expressions “affecting two or more Member States” in the decisions reproduce the identical text of Art.85(1) and 88(1) of the Treaty on the Functioning of the European Union.

[7]Cited supra note 2.

[8] One could assume that the wording at the beginning of Art.3(1)Eurojust decision does not establish substantial competence criteria but is merely recapitulating in short the phenomenology of cases assigned to Eurojust by Art. 4 Eurojust decision combined with the Europol decision.

[9]Art. 3(1)(b) Eurojust decision, cited supra note 2.

[10]Recital 6 EAW decision, citedsupra note1.

[11]Art. 1(2) and recital 6 EAW decision, citedsupra note1.

[12] Art. 3(1)(a) Eurojust decision, cited supra note 2.

[13] Art. 3(1)(c) Eurojust decision, cited supra note 2.

[14] See p.3.

[15] Agreement between Eurojust and the Republic of Croatia of 9 Nov. 2007.

[16] Art. 2(1) EAW decision, cited supra note 1.

[17] Art. 2(2) EAW decision, cited supra note 1.

[18] See p.2.

[19] Art. 17(3) EAW decision, cited supra note 1.

[20]European Convention on Extradition, signed in Paris on 13 Dec. 1957.Croatia ratified the Convention on 25 Jan. 1995; obligations have come into effect on 25 April 1995.

[21] Cited supra note20.

[22] Cited supra note20.

[23] Cited supra note20.

[24]Cf. e.g. Art. 4(1) Europol Decision, cited supra note 3; Art. 2 UN OC Convention, cited supra note 5.

[25] Cited supra note20.