Lessons of the European Arrest Warrant for Domestic ...

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180 ZSUZSANNA DEEN-RACSMÁNY3.3. Recognition of international obligations under the constitutionThe PCT had to address another relevant argument, namely that Article 9 of thePolish Constitution, confirming that ‘The Republic of Poland shall observe the internationallaw binding upon it’, could justify deviation from the constitutionallyguaranteed right of nationals against extradition. The PCT dealt with and declinedthis argument within the unique EU context, with reference to the EU-law principleof pro-European or consistent interpretation and to its limits established by theEuropean Court of Justice. 56 The specifics of EU law render these arguments hardto translate to the ICC. However, later in its judgment, the Tribunal found itselfcompelled to take note of this provision in a context other than the discussion ofthe internal limits of the rights established by the constitution. Rather, it located itsimplications in the domain of obligations imposed on the legislature, finding thatArticle 9 would render itindispensable to change the law in force in such a manner as to enable not only fullimplementation of the [EAW], but also such as to assure its conformity with theConstitution. 57Even more relevantly, the recent decision of the Czech Constitutional Court(CzCC) on the surrender of nationals under the EAW indicates that constitutionalprovisions reinforcing international obligations (such as Article 1(2) of the CzechConstitution) 58 assumed by the state may not suffice indirectly or tacitly to modifythe constitution. Admittedly, the Court confirmed at the outset that, in the light of itsArticle 1(2), ‘the Constitution should ...principally be interpreted in a conformistway from the perspective of international law’. 59 Even more importantly, however,it concluded that ‘Article 1 Paragraph 2 of the Constitution is not a provision capableof freely changing the meaning of any other explicit constitutional provision.’ 60Moreover,whereastheadoptionoftheFinnishlegislationimplementingtheEAWwas made possible through an ‘exceptive enactment’ despite its inconsistency withthe constitutional prohibition on the extradition of nationals, the ConstitutionalLaw Committee ‘strongly hinted’ that constitutional reform was required in orderthat Finland could better comply with its international and European obligationsrelated to extradition of its nationals. This reform is currently under way. 61These cases indicate that such provisions are unlikely to affect the position of aconstitutional court inclined to protect the integrity of its constitution and hencethe right against extradition of nationals to the ICC. 62 Nonetheless, in a widely citedstudy published long before the EAW challenges, Duffy argued specifically to the56. PCT decision, supra note 16, at 15, para. 3.4.57. Ibid., at 21, para. 5 (emphasis added).58. Available at http://www.oefre.unibe.ch/law/icl/.59. CzCC decision, supra note 16, at 29, para. 79.60. Ibid., at 30, para. 82.61. Ojanen, supra, note 15, at 95–6, cf. text accompanying note 15, supra, on the adoption of the Finnish EAWimplementing act. According to Ojanen, the Finnish Constitutional Law Committee ‘went so far as to notethat the draft EAW derogated from the fundamental right of every Finn not to be extradited to such a degreethat the wording of the relevant constitutional provision (Section 9, subsection 3) would no longer at allreflect the factual circumstances appropriately’.62. Moreover, as has been argued in the context of the EAW,
THE EUROPEAN ARREST WARRANT AND THE OBLIGATION TO SURRENDER NATIONALS 181contrary. She claimed that provisions confirming the international obligations ofa state could solve the problem of constitutional incompatibility of surrenderingnationals with obligations arising from the ICC Statute. 63 Due to the central importancethus attributed to these rules in the ICC discourse, the argument will beexplored in more detail.Duffy has reviewed constitutional provisions ranging from declaring particularratified treaties – relating to human rights – superior to domestic laws, throughthose placing such treaties on a constitutional rank, to that of Paraguay, ‘admitting asupranational legal system’. 64 Following a short overview, she concluded in passingthatTherefore, in many circumstances there may be strong arguments that, upon ratification,there would be no inconsistency between the constitutional order and the RomeStatute, as the Statute would itself form part of that constitution or take precedenceover inconsistent parts of it. 65In the view of this author, this position is overly simplified and exaggeratedlyoptimistic. True, constitutions may provide for the pre-eminence of ratified treatiesover domestic law. Duffy correctly refers to the Slovak and Czech constitutions inthis context. However, the full text of the Slovak rule provides thatInternational treaties on human rights and basic liberties that were ratified by theSlovak Republic and promulgated in a manner determined by law take precedenceover its own laws, provided that they secure a greater extent of constitutional rights andliberties. 66The italicized part may be interpreted as reinforcing the right not to be extradited,stated in Article 23 (placed in the section entitled ‘Basic Human Rights and Liberties’)of the same constitution.Moreover, even where such provisions merely confirm that ‘Ratified and promulgatedinternational accords on human rights and fundamental freedoms, to whichthe Czech Republic has committed itself, are immediately binding and are superiorto law’, 67 it is still at best unclear, based on a textual reading of these provisions,whether their hierarchically higher status extends even to constitutional rules, or isinfactlimitedtodomesticstatutes.TheCzCCdecisionclearlyrejectsanysuggestionsto this effect.Moreover, even provisions giving ratified (human rights) treaties a constitutionalrank merely lead to an internal inconsistency within the constitution between theobligation to co-operate with the ICC and the obligation not to extradite nationals.it remains possible to contend that if the EAW [or an international treaty] makes the surrender of aperson from one state to another easier, then the level of protection, as a counterbalance, would haveto be raised. It should not be possible to evade a constitutional guarantee whereby a legal instrumentwhich is hierarchically superior to the law is required – not one that is qualitatively very different –so as to offer protection to the person to be surrendered. (Impala, ` supra note 25, at 67.)63. Duffy, supra note 5.64. Constitution of Paraguay (available at http://www.oefre.unibe.ch/law/icl), Art. 145.65. Duffy, supra note 5, at 8.66. Supra note 14, Art. 11 (emphasis added). Cf. note 62, supra.67. Czech Constitution, supra note 58, Art. 10. Cf. text accompanying notes 58–60 on the relevant part of thedecision of the CzCC.
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