Lessons of the European Arrest Warrant for Domestic ...

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170 ZSUZSANNA DEEN-RACSMÁNYand advocates that these be taken up in the course of reviewing domestic legislationfor the purposes of implementing the ICC Statute.2. EAW EXPERIENCE RELATED TO THE OBLIGATIONTO SURRENDER NATIONALSThe purpose of the Council Framework Decision on the European Arrest Warrant 9was to simplify the extradition between the member states of the EU of individualsaccused or convicted of certain types of serious criminal acts. As a consequence,it deviates from classical extradition rules, procedures, and terminology in manyrespects. 10 Significantly, the only remnant of the traditional freedom of states to(reservethemselvestherightto)declineextraditionoftheirnationalsisaconditionalexception. This permits refusal to surrender nationals for enforcement of a sentenceif the state of nationality undertakes to enforce the sentence in accordance withits own laws. 11 Implicit in this provision appears to be the assumption that in theabsence of such an undertaking, surrender of nationals must be permitted.Theprovisionon‘GuaranteestobegivenbytheissuingMemberStateinparticularcases’inturncontainsanindirectbutunambiguousobligationtoextraditenationalsfor prosecution:The execution of the European arrest warrant by the executing judicial authority may,by the law of the executing Member State, be subject to the following conditions: ...3. where a person who is the subject of a European arrest warrant for the purposesof prosecution is a national or resident of the executing Member State, surrendermay be subject to the condition that the person, after being heard, is returned to theexecuting Member State in order to serve there the custodial sentence or detentionorder passed against him in the issuing Member State. 12Prior to the EAW, 14 of the 25 current EU member states’ constitutions containedprovisions prohibiting or at least limiting the extradition of nationals. 13 TheEAW has brought about some change. Germany, Portugal, Slovakia, and Sloveniaundertook constitutional amendment to accommodate the obligation to surrendernationals under the EAW (and under the ICC Statute). 14 Finland, in turn, adopted9. See note 7, supra.10. See text accompanying notes 23–5, infra.11. EAW, supra note 7, Art. 4(6).12. Ibid., Art. 5. Cf. Zs. Deen-Racsm any ´ and R. Blekxtoon, ‘The Decline of the Nationality Exception in EuropeanExtradition? The Impact of the Regulation of (Non-)Surrender of Nationals and Dual Criminality under theEuropean Arrest Warrant’, (2005) 13 European Journal of Crime, Criminal Law and Criminal Justice 317, for acriticism of the EAW related to the surrender of nationals.13. Austria, Cyprus, Czech Republic, Estonia, Finland, Germany, Italy, Latvia, Lithuania, Netherlands, Poland,Portugal, Slovakia, Slovenia. Cf. Zs. Deen-Racsm any, ´ ‘The European Arrest Warrant and the Surrender ofNationals Revisited: The Lessons of Constitutional Challenges’, (2006) 14 European Journal of Crime, CriminalLaw and Criminal Justice 271, at 293–9.14. See Art. 16(2) of the German Basic Law (hereinafter BL), available at http://www.oefre.unibe.ch/law/lit/the_basic_law.pdf. (This provision was amended in 2000, primarily to accommodate Germany’s obligationsunder the ICC Statute. However, due to noticeable developments in the EU in the field of judicialco-operation at the time, an opening was made for exceptions within Europe as well.) Art. 33(3) of the
THE EUROPEAN ARREST WARRANT AND THE OBLIGATION TO SURRENDER NATIONALS 171the implementing act through a special procedure known as ‘exceptive enactment’(i.e. the adoption of a statute incompatible with constitutional provisions, requiringthe same majority as is prescribed for constitutional amendment). 15 In addition,another four of the 14 constitutions (those of Estonia, Italy, Lithuania, and the Netherlands)permit extradition of nationals pursuant to treaty obligations. Still, in atleast five member states the obligation to surrender nationals under the EAW wasintroduced into domestic law in spite of conflicting constitutional prohibitions. Inyet others (e.g. France, Greece, and Luxembourg) the duty to surrender nationalsunder the EAW was codified in domestic law in the face of conflicting prohibitionsof a statutory rank. It may therefore not come as a surprise that (constitutional)challenges were initiated in several member states shortly after the entry into forceof the EAW.The resulting decisions – pronounced by constitutional or other domestic highcourts in Poland, Germany, Cyprus, Greece, and the Czech Republic – on the extraditionof nationals under the EAW demonstrate a great deal of dissimilarity in terms ofthe legal considerations central to them. It is nonetheless possible to identify somearguments which have played a significant role in more than one of them, or whichcan be expected to be invoked in other member states. These considerations may besummarized as follows: 161. surrender under the EAW is in essence the same legal institution as extraditionor it is a sub-category thereof;2. surrender/extradition of nationals in spite of a constitutional ban cannot bejustified with reference to other provisions of the constitution (e.g., guardingordre public);3. conflicting international obligations (here specifically ones flowing from theFramework Decision or from EU law in general) cannot justify derogation fromthe constitutionally guaranteed right against extradition;Constitution of Portugal, available at http://www.parlamento.pt/ingles/cons_leg/crp_ing; Art. 23(4) of theConstitution of Slovakia, available at http://www.vop.gov.sk/en/legal_basis/constitution.html; Art. 47 of theSlovenian Constitution, available at http://www.oefre.unibe.ch/law/icl.15. T. Ojanen, ‘The European Arrest Warrant in Finland: Taking Fundamental and Human Rights Seriously’, inE. Guild (ed.), Constitutional Challenges to the European Arrest Warrant (2006), 89, at 94.16. Considerations 1–5 and 7 were reached by the author (following a review of the Judgment of 27 April2005 by the Polish Constitutional Tribunal (hereinafter PCT) (File reference No. P 1/05; an unofficialEnglish translation of the decision is available at http://www.trybunal.gov.pl/eng); the Judgment ofthe German Federal Constitutional Court (hereinafter GFCC) of 18 July 2005 (BVerfG, 2 BvR, Absatz-Nr.(1–201), available at http://www.bverfg.de/entscheidungen/rs20050718_2bvr223604.html); DecisionNo. 295/2005 of the Supreme Court of Cyprus (hereinafter SCC) (Council Document No.14281/05, 11 November 2005, Ann. B, available at http://www.consilium.europa.eu/cms3_Applications/applications/PolJu/details.asp?lang=EN&cmsid=545&id=138); and Decision No. 591/2005 of the AreiosPagos (Council Document No. 11858/05, 9 September 2005, Ann. A, available at http://www.consilium.europa.eu/cms3_Applications/applications/PolJu/details.asp?lang=EN&cmsid=545&id=78)) in Deen-Racsm any, ´ supra note 13. Considerations 6 and 8, on the other hand, flow from the decision of the CzechConstitutional Court (hereinafter CzCC) in a similar case (NO. Pl. US ´ 66/04 of 3 May 2006, available athttp://www.eurowarrant.net).
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