Lessons of the European Arrest Warrant for Domestic ...

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182 ZSUZSANNA DEEN-RACSMÁNYSuch conflict, in turn, is likely to be resolved with reference to the thesis thatlimitations imposed on a constitutional right may not affect the core of the right,confirming the right against extradition or surrender.It is difficult to address here the relevance to the question under considerationof Duffy’s unelaborated contention that Belgian jurisprudence (rather than theconstitution itself) establishes the pre-eminence of self-executing treaties over theinternal legal order, including the constitution. Similarly, a thorough knowledgeof the law and jurisprudence of Paraguay would be required to address whetherArticle 145 of the Constitution of Paraguay is likely to solve the problem of internalinconsistency. As correctly cited by Duffy, it provides that ‘The Republic of Paraguay,on an equal footing with other states, admits a supranational legal system thatguarantees the enforcement of human rights, peace, justice, and cooperation, aswell as political, socioeconomic, and cultural development.’ 68In any case, the question of whether it is meant to render such treaties and normssuperior to the Constitution is at best confused by the next sentence, stating that‘These decisions can be adopted only through an absolute majority vote by eachhouse of Congress’ 69 and by Article 137(1), providing thatThe Constitution is the supreme law of the Republic. The Constitution, the internationaltreaties, conventions, and agreements that have been approved and ratifiedby Congress, the laws dictated by Congress, and other related legal provisions of lesserrank make up the national legal system, in descending order of preeminence, as listed. 70Insum,itislikelythatsuchprovisionswillnotconvincedomestic(constitutional)courts to rule in favour of permitting surrender to the ICC, despite constitutionalprohibitions against the extradition of nationals. Duffy’s optimism is in any caseclearly contradicted by the EAW experience in Poland, the Czech Republic, andFinland.3.4. No ground for arrest and other special provisions related to nationalsIn the relevant challenge brought before the Supreme Court of Cyprus 71 it wasclaimed that since the Constitution of Cyprus prohibits the extradition of nationals,surrender of nationals under the EAW scheme was similarly excluded. Albeittouching briefly on the issue of a distinction between surrender and extradition, theCourt reached the conclusion of unconstitutionality of such surrender based on thefact that the Constitution of Cyprus contains an exhaustive list of cases wherein aperson may be arrested. 72 Consistent with the prohibition on the extradition of nationals,arrest for extradition is mentioned only with regard to aliens. 73 Accordingly,the Court found that surrender – necessitating the arrest – of a national would beunconstitutional.68. Supra note 64, Art. 145(1).69. Ibid., Art. 145(2).70. Ibid.,Art.137(1).Thisconstitutionapparentlydoesnotcontainaruleprohibitingtheextraditionofnationals.71. Supra note 14.72. Supra note 16, at 15.73. Constitution of Cyprus (available at http://www.oefre.unibe.ch/law/icl), Art. 11(2).
THE EUROPEAN ARREST WARRANT AND THE OBLIGATION TO SURRENDER NATIONALS 183Cyprus appears to be the sole EU member with such a provision, and it is unlikelythat a significant number of ICC states parties would face this specific obstacle toco-operation. However, the Cyprus case illustrates that where the extradition ofnationals is constitutionally prohibited, procedures may not be available for arrestand surrender, or extradition or surrender may have other practical limits.The ICC regime is likely to differ from the EAW regime in this respect. Next to thegeneral obligation to co-operate, it is hoped that states parties will comply with theobligation under Article 88 of the Statute to adopt procedures under domestic lawnecessary for co-operation with the ICC. 74 The Cypriot case demonstrates, however,that legislatures may fail to identify all provisions that need to be amended oradopted. It is thus worth emphasizing that required amendments should not belimited to the very provision banning extradition of nationals, but would also haveto concern procedural aspects regulated under the constitution. In other words,constitutions should be reviewed and revised in a comprehensive manner so as topermit identification of amendments necessary to enable co-operation with the ICC.3.5. The rule of lawSince the EAW explicitly rules out the applicability of the dual criminality requirement(i.e. that the act must constitute a crime in both jurisdictions) in the context ofEAW surrender decisions, persons may be surrendered for the (alleged) commissionof acts that do not constitute a crime in the surrendering state, where the acts mayhave taken place. For this reason, the German Federal Constitutional Court (GFCC)and the CzCC had to address the effect of the principle of nullum crimen sine legeon the constitutional compatibility of the statutory provisions implementing theobligation to surrender nationals for prosecution under the EAW.In addressing the impact of the constitutional provisions guaranteeing the ‘ruleof law’ and the ‘principle of legality’, respectively, both courts confirmed that thenullum crimen sine lege principle would (have to) prevent surrender of nationals underthe EAW in certain cases. At the outset, it was recognized in both cases that thisprinciple (or the principle of retroactivity or legality) applies to material criminallaw and not to changes of criminal procedure, to which extradition law belongs. 75Hence the lack of a dual criminality condition in relation to extradition as suchwould not violate it.Looking at the question in more detail, both courts distinguished between caseswith primarily domestic connecting factors and transnational crimes. The GFCCconcluded that in the latter type of case, this defence is plainly out of place. It found,however, that the situation is different for cases where Germans who previouslyenjoyed an absolute protection from extradition were to be extradited for acts thatlack a significant foreign connection and had not been penalized under Germanlaw at the time of their commission. Here, the situation would be comparable toa retroactive change of material law. 76 These cases would fall under Article 4(7) of74. Supra note 1.75. GFCC decision, supra note 16, at 19, para. 98; CzCC decision, supra note 16, at 34, paras. 101–2.76. Ibid., at 19, para. 98.
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