CASE

Jan Lubjojevic

The European serial Robber

Team: Netherlands 2 (Hester Leepel, Jaap Maarleveld, Josien Pauwelussen)

Introduction

On 6 November 2010 the Croatian Jan Lubjojevic (Lubjojevic) was arrested at the main airport of The Netherlands pursuant to a European arrest warrant (EAW) issued by France in December 2009 and an internal arrest warrant issued by Croatia in that same month. Since Croatia is not a MemberState of the European Union (EU) yet,[1] the internal arrest warrant has beendisseminated internationally through Interpol. This dissemination is called a “red notice”, which legal base is an arrest warrant or court order issued by the judicial authorities in de country concerned. Many of Interpol’s member countries consider a red notice to be a valid request for a provisional arrest. Interpol is recognized as an official channel for transmitting these requests in a number of bilateral and multilateral treaties, including the European Convention on Extradition. Both The Netherlands and Croatia are Member of this convention (The Netherlands since 5 May 1949, Croatia since 6 November 1996).[2]The Netherlands are puzzled whether Lubjojevic should be surrendered to France or toCroatia, and have therefore asked Eurojust to advise them on the matter of these two “conflicting” requests.

a)Is Eurojust competent to give an advice on the solution of this case?

The answer is YES. Article 3 of the Agreement between Eurojust and the Republic of Croatia of 9 November 2007 states that “The republic of Croatia and Eurojust shall co-operate in the fields of activity set forth in Articles 6 and 7 of the Eurojust Decision within the competences of Eurojust as set forth in Article 4 of the Eurojust Decision.”The Eurojust Decision mentioned herein is the Council Decision of February 2002.[3] The Agreement between Eurojust and the Republic of Croatiais an agreement in accordance with Article 26a of this Decision, establishing a cooperative relation.

In accordance with Article 3 of the Decision, one of the objectives of Eurojust 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.” In accordance with the preamble of the Framework Decision on the European arrest warrant[4] - clarified by the Handbook on how to issue a European Arrest warrant[5] - international mutual legal assistance and the implementation of extradition requests fall under the scope of the principle of mutual recognition. Therefore Eurojust has competence on these questions. This competence is given form in article 16, paragraph 2, of the Framework Decision, which states that the executing judicial authority may seek the advice of Eurojust when making the decision in the event of multiple EAW’s by Member States.

The Republic of Croatia is not a EU Member State. Hence the conflict of extradition that The Netherlands is presented with, is a conflict covered by article 16, paragraph 3, and consequently not covered by the explicit competence of Eurojust given in paragraph 2. But since the Republic of Croatia has agreed to co-operate in this field, as explained above, they have as a result accepted the competence of Eurojust in this matter. Thus, Eurojust can act as facilitator and coordinator in extradition cases concerning MemberStates and The Republic of Croatia.

Eurojust will advise The Netherlands on which request should be given precedence.

b)Should Jan Lubjojevic be surrendered to France or extradited to Croatia?

The EAW is founded in the Council Framework Decision of 13 June 2002 on the European arrest warrant (Framework Decision).[6] The realization of this Framework Decision is a direct result of the objective set for the European Union to become an area of freedom, security and justice. Also, the Tampere European Council of 15-16 October in 1999 called upon Member States to make the principle of mutual recognition the cornerstone of a genuine European law-enforcement area. This has lead to abolishing extradition between MemberStates and replacing it by a system of surrender between judicial authorities (preamble of the Framework Decision, under 5). In the preamble of the Framework Decision, under 6, is stated that “this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the “cornerstone” of judicial cooperation.” As a result, the arrest warrant is designed to replace the, at that time applicable, extradition system by requiring each national judicial authority (the executing judicial authority) to recognise, ipso facto, and with a minimum of formalities, requests for the surrender of a person made by the judicial authority of another Member State (the issuing judicial authority). This means that for EU Member Statesin the present case the Framework Decision replaces the 1957 European Extradition Convention[7] which was applicable between The Netherlands, France and Croatia until that date. Therefore the EAW is applicable between The Netherlands and France. Between The Netherlands and Croatia, the European Extradition Convention is (still) applicable. As a resultThe Netherlands are being confronted with conflicting requests. On one hand, France has requested the surrender of Lubjojevic on the basis of the EAW, on the other hand The Netherlands is obliged to cooperate with Croatia on the basis of the European Extradition Convention. Both regulations have articles that apply to situations with conflicting requests.

Article 16, paragraph 3, of the Framework Decision reads: in the event of a conflict between an EAW and a request for extradition presented by a third country, the decision on whether the EAW or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.

Paragraph 1 of article 16 reads: (...) with due consideration of all circumstances and especially the relative seriousness and place of the offences, the respective dates of the EAW’s and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order.

Article 17 of the European Convention on Extradition(which is the applicable convention of article 16, paragraph 3, of the Framework Decision) reads: if extradition is requested concurrently by more than one State, either 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 the 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.

In accordance with article 16 paragraph 3 of the Framework Decision, all circumstances mentioned in paragraph 1 of article 16 of the Framework Decision and article 17 of the European Convention on Extradition have to be considered by The Netherlands. Moreover, in the proposal for a Framework Decision on the European Arrest Warrant by the European Commission of 27 November 2001[8] article 17 of this convention is specifically mentioned. This proposal also states that “in the event of a conflict between a European arrest warrant and a request for extradition presented by a third country which is not a party to that convention, the execution of the European arrest warrant shall take precedence.” Since Croatia is a member of the European Convention on Extradition, this precedence is not applicable.

Hereafter, the applicable circumstances will be weighed against each other.

Facts

France’s request is based on the conviction of Lubjojevic on two counts of aggravated robbery. He was one of three individuals who participated in two bank robberies between December 2007 and January 2008 inToulouse, France. The perpetrators carried and showed guns, but didnot use them. No-one was injured. The robbers took 1.023.010,-- euro in total which was never recuperated. Lubjojevic has been trialed in January 2009 and was sentenced for 9 years imprisonment.

The Croatian government convicted Lubjojevic by definitive sentence to 12 years imprisonment on counts of attempted aggravated robbery and two crimes of attempted murder of Croatian police officers. Lubjojevic and three others robbed a bank in Osijek (Croatia) in April 2007. They carried guns and used them. Two police officers were seriously injured. Lubjojevic and one of his companions managed to escape with approximately 80.000,- euro. In December 2009 he escaped from prison.

The seriousness of the offences

Although the conviction in France is for two accomplished offences and the conviction in Croatia is for three attempts, Eurojust concludes that the offences whereupon Croatia’s request was based should count as more serious, because weapons were used and police officers were seriously injured.[9]Another argument in favor of Croatia is that the sentence upon which the French request was based is 9 years imprisonment while the Croatian request is based on a penalty of 12 years imprisonment. Furthermore, Croatia has also based its request on prosecuting Lubjojevic for evasion in December 2009, corresponding to an abstract penalty of 3 years imprisonment.

The place of the offence

The convictions on which the requests were based are both perpetrated in the countries requesting the surrender, respectively Toulouse (France) and Osijek (Croatia). No country is favored.

The respective dates of the requests

France issued an EAW in December 2009. The EAW is a judicial decision issued by a MemberState with a view to the arrestand surrender by another MemberState of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. Croatia issued a request for an internal arrest warrant that same month. The European Convention on Extradition only sees to the actual extradition that follows such an internal (internationalized) arrest warrant. One could therefore say that the arrest warrant and the extradition request are interdependent.

Although Croatia has issued an extradition request only after Lubjojevic was arrested in The Netherlands on 6 November 2010, Eurojust will therefore base its deliberation on the date of issuing the arrest warrant (December 2009). This means that both requests have been issued at about the same time. No country is favored.

Prosecution or execution

The purpose of the French request is the execution of 9 years imprisonment.

The purpose of the Croatian request for extradition is the execution of a sentence of 12 years imprisonment, minus the 15 months he has already served, and the prosecution of Lubjojevic for evasion. Eurojust gives preference to the Croatian request in these circumstances.

Nationality

Lubjojevic has the Croatian nationality. This works in favor of extradition to Croatia.

The possibility of subsequent extradition to another State

Favoring France, Eurojust points out that France could apply to the surrender of Lubjojevic by The Netherlands, withholding in that decision the consent of The Netherlands concerning subsequent extradition from France to Croatia, in accordance with article 28 paragraph 4 of the EAW. In that case, Lubjojevic would first be extradited to France and from there on to Croatia.

In that case France could postpone the surrender of Lubjojevic to Croatia in order to have him serve his 9 years sentence, in accordance with article 24 paragraph 1. One formal difficulty of this is that Croatia would have to address a (new) formal extradition request to France, because the present request is addressed to The Netherlands.

Vice versa, favoring Croatia, Croatia could agree to extradite Lubjojevic to France after he served his sentence in Croatia. Equally, this would require a formal extradition request by France. Eurojust would recommend The Netherlands to favor the country that in anticipation agrees to the subsequent extradition of Lubjojevic to the other country.

Other circumstances: residency

A requested person is “resident” in a State when he has established his actual place of residence there and he is staying there when, following a stable period of presence in that State, he has acquired connections with that State. “To ascertain whether there are such connections an overall assessment must be made of various objective factors characterizing the situation of that person, including, in particular, the length, nature and conditions of his presence and the family and economic connections.”[10]

Although Lubjojevic has the Croatian nationality, the last record of his presence in Croatia was in April 2007. He was detained in Croatia from September 2008 till his escape in December 2009. It is unknown whether Lubjojevic has ever resided in France.In these circumstances, residence is in favor of extradition to Croatia.

Other circumstances: personal

Lubjojevic has been convicted in Croatia several times before.

He is 37, single and no close family links are known. There are no leads that he has been working in Croatia. There are no assumptions that Lubjojevic ever worked in France or has any connections with the country. Lubjojevic managed to escape from the Croatian prison. This is in favor of none of the two countries.

Conclusion

Eurojust advises The Netherlands to extradite Lubjojevic to Croatiaon the following basis.Although France and The Netherlands are both EU Member States and,in accordance with article 1, paragraph 2, of the Framework Decision, shall execute any EAW on the basis of the principle of mutual recognition, such execution has to be in accordance with the provisions of the Framework Decision. According to the provision of article 16, paragraph 3, all circumstances have to be weighed in order to conclude as to which request has precedence. Eurojust supports the Croatian request because the offences and their sentence on which the request is based are more serious, the request is based on both the execution of a definitive sentence and a prosecution, Lubjojevic has the Croatian nationality, has resided in Croatiain the past and was sentenced there before he escaped.

Closing remarks

Eurojust has noticed that France issued the EAW on the basis of the conviction on two counts of aggravated robbery. Eurojust wonders whetherFrancehas usedthe opportunity to investigate the possiblemoney laundering which might accompany such enormousloot (over one million euro). Eurojust points out this specific argument because in the history of Europe, a lot of attention has been given to money laundering;In 1991 with a Directive on money laundering[11], in 2001 with a Council Framework Decision on, among others, money laundering[12] andin 2005 with a new Directive on money laundering.[13] The fundamental idea of these regulations is that money laundering in itself is a crime, usually associated with all types of organised crime where huge profits in cash are generated: for example the aggravated robberies committed by Lubjojevic. Money laundering is the process by which criminal proceeds are 'cleaned' so that their illegal origins are hidden. Although it is not possible to measure it in the same way as legitimate economic activity, the scale of the problem is considered to be enormous. That is the reason why it has been given strategic priority at European Union level.[14] The Council observed that one of the criminal markets which should be prioritised by the EU in the fight against organised crime for 2009/2010 is money laundering.[15] This line of approach is also reflected in the Framework Decision on the European Arrest Warrant itself. In article 2 laundering of the proceeds of crime is one of the first specifically mentioned offences which shall, without verification of the double criminality of the act, give rise to surrender pursuant to an EAW. Perhaps not a coincidence, Eurojust has been set up to reinforce the fight against serious organised crime, and combating money laundering is an important part of this aim.[16]In the future, France could consider the prosecution for money laundering as an extra weight to tilt the scale in their direction.

References:

Regulations:

  • Council Framework Decision of 13 June 2002 on the European arrest warrant, 2002/584/JHA;
  • Council Framework Decision of 13 June 2002 on the European arrest warrant, 2002/584/JHA, preamble
  • European Convention on Extradition, Paris, 13.XII.1957;
  • Council Decision of February 2002, (2002/187/JHA).
  • OJ C 332 E, 27.11.2001, p. 305, comment on article 40;
  • Directive of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (91/308/EEC)
  • Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001
  • 2001/500/JHA : Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime.
  • Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing

Internet:

Jurisprudence

  • Commission of the European Communities vs Kingdom of Belgium, 2008/C223/28;

Other

  • Final version of the European handbook on how to issue a European Arrest Warrant (8216/2/08; 24 June 2008).

1

[1]Croatia is in the final stage of compliance to the conditions set by the EU:

[2] Notices.

[3]Council Decision of February 2002, (2002/187/JHA).

[4]Council Framework Decision of 13 June 2002 on the European arrest warrant, 2002/584/JHA, preamble.

[5] Final version of the European handbook on how to issue a European Arrest Warrant (8216/2/08; 24 June 2008).

[6]Council Framework Decision of 13 June 2002 on the European arrest warrant, 2002/584/JHA.

[7]European Convention on Extradition, Paris, 13.XII.1957.

[8]OJ C 332 E, 27.11.2001, p. 305, comment on article 40.

[9] On the side, Eurojust notes that it is surprising that Lubjojevic was convicted only on counts of attempted aggravated robbery, while the robbery was organized, they shot police officers and Lubjojevic managed to escape with part of the loot.

[10] Commission of the European Communities vs Kingdom of Belgium, 2008/C223/28.

[11]Council Directive of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering (91/308/EEC) and in 2001 the Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001 amending the aforementioned Directive of 1991.

[12]2001/500/JHA : Council Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime.

[13] Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing.

[14] Also, at international level, in 2003 the Financial Action Task Force launched forty recommendations on money laundering.

[15]

[16] Decision 2002/187, Pb L 31/1. Article 4, onder 1b.