Practical Case

THEMIS FINAL:

PRACTICAL CASE.

Italy 2

Eurojust has been submitted by European Union Country A a request of advice concerning a conflict emerged in the execution of two surrender requests of different nature.

The relevant facts may be summarized as follows.

Jan Lubjojevic, a Croatian national of unknown residence (his last notorious residence being in his home town of Split, where he has been missing since April 2007), was arrested in November, 6th 2010 at the main national airport of EU Country A.

This Country has to decide whether to surrender the arrested to France, which issued an European arrest warrant in January 2009, or to Croatia that sent an extradition request based on an Internal arrest warrant issued in December 2009.

The European arrest warrant issued by France is based on a sentence that convicted Lubjojevic to a term of 9-years imprisonment on the grounds of two aggravated robberies. The offences were respectively committed in December 2007 and in January 2008 in the French city of Toulouse; during the crimes, although firearms were shown to the employees of the banks robbed, no shots were fired and no one got hurt. In both occasions, the attackers were in number of three; the first haul amounted to € 457,780 and the second one to €665,230.

Although issued in January 2009, the cited European arrest warrant was not executed since Lubjojevic was serving detention in Croatia (aside from a period in which he was transferred to France to attend the trial there). It was nonetheless renewed the following December, when France received by Croatian authorities an information concerning Lubjojevic’s evasion.

The extradition request put forward by Croatia – subsequent to an internal arrest warrant issued in 2009 and disseminated through Interpol –aims to obtain the surrender of Lubjojevic on the grounds of both a conviction to a term of 12-years imprisonment (due to a charge of attempted aggravated robbery and two attempted murders) and of a prosecution for the crime of evasion previously described.

The robbery, who was committed in a Croatian bank by the accused along with three offenders, was aggravated by the use of firearms as well (following which, one of the attackers ended up dead and two police officers got seriously injured: thus the charge of two attempted murders) and gained Lubjojevic and the other accomplice who succeeded in escaping a haul of approximately € 80,000.

Given the facts, from the prescriptive standpoint EU Country A has implemented Council Framework Decision 2002/584/JHA relating to the European arrest warrant and the surrender procedures between and is not linked to Croatia by any bilateral extradition agreement.

Nonetheless, it needs to be stressed out that Croatia is entitled to request extradition from EU Country A having signed in 1995 the European Convention on Extradition (dating back to 1957), as well as the first and second Additional Protocols (respectively adopted in 1975 and in 1978). These instruments have been signed by all the EU countries too.

II.

Before addressing the merits of the case, we must determine whether Eurojust is competent to give this sort of advice according to the applicable legal instruments and, if such a competence is recognized, who is entitled to express the opinion (id est, the College or the single national member).

The competence of Eurojust in cases such as the one brought to our attention – namely, when a conflict arises between the execution of an European Arrest Warrant, issued by a State who is member of the European Union, and the execution of an extradition request, put forward by a third country – is not explicitly laid downin Art. 16 of the cited Decision.

As stated in paragraph 1 of the above-mentioned provision, whenever two or more Member States have issued European arrest warrants in respect of the same person, the decision of which of those shall have to be executed will be taken by the executing judicial authority with due consideration of all the circumstances pertaining to the concrete case (we will go through them in detail when answering the second question posed, sub III).

In fulfilling this task, says paragraph 2, the executing judicial authority may seek the advice of Eurojust.

If such a conflict occurs between an European arrest warrant and an extradition request, rather than between two European arrest warrants, the same criteria apply to solve the dispute: this is reaffirmed in paragraph 3, where Art. 16 points out that the decision shall be taken in accordance with the parameters listed in paragraph 1, combined with those which may be mentioned in bilateral conventions applicable in respect of the third country.

The latter paragraph, while extending the scope of the criteria to the case at stake, does not envisage in such cases an advisory competence on part of Eurojust.

We should ask ourselves whether this truly prevents executing judicial authorities to have recourse to assistance from Eurojust if they wish to do so in facing two surrender requests of different type from different States.

In our opinion, a provision can be found in Council Decision 2002/187/JHA[1] suggesting that Eurojust could be successfully requested to give advice also in these cases: this is precisely Art. 4, paragraph 2, which, enlisting the competences of Eurojust, provides that – for types of offences other than those referred to in paragraph 1[2] – Eurojust may in addition assist in investigations and prosecutions at the request of a competent authority of a MemberState.

This task needs to be fulfilled by Eurojust in accordance with its objectives. These are described in Art. 3, which furthermore states that – pursuant to the rules set down by the Decision itself and at the request of a Member State’s competent authority – Eurojust may also assist investigations and prosecutions concerning onlythat Member State and a non-Member State where an agreement establishing cooperationpursuant to Art. 26a, paragraph 2 (Art. 27, paragraph 3 in the version of the Decision prior to the amendment brought by Council Decision 2009/426/JHA)has been concluded with the cited State.

This is exactly the case of the Republic of Croatia, which in November 2007, 9th signed such an agreement with Eurojust; we can therefore conclude that, since a cooperation agreement exists between Eurojust and a third country, any Member State having to address requests relating to the latter is entitled to seek the advice of Eurojust, since there is little doubt that this advisory role represents an assistance in investigations and prosecutions for the requesting State.

It may be asked if the advice on part of Eurojust needs to be provided by the single national member or by the whole College.

The first solution could rest upon Art. 6 of the Decision setting up Eurojust, which states that – in the cases referred to in Art. 3, paragraph 2– it is up to the national member, with the agreement of theCollege, to assist investigations and prosecutions concerning the competent authorities ofonly one MemberState.

The opposite option – supported by some experts, including Italy’s former national member of Eurojust[3] – is that the request of the advice should be addressed to the College, given that, pursuant to Art. 5, paragraph 1 of the Decision in comment, Eurojust fulfills its tasks through the above-mentioned body whenever a general question concerning the achievement of its objectives is at stake.

Subsequently, if international judicial cooperation and assistance to competent authorities of the Member States aiming to improve the effectiveness of their investigationsand prosecutions are among the main objectives of Eurojust, it cannot be denied that the whole issue concerning assistance in the execution of an European arrest warrant falls within the competence of the College. Only the latter, by the way, is given the responsibility to set down uniform rules and criteria applying to similar cases.

The interpretation depicted above, although originally referred to the slightly different case of a conflict between two European arrest warrants, seems recommendable in the case of a conflict between two surrender requests, one of which is an extradition request.

In fact, the rationale behind this approach is the same: since the interests of more than one country are involved, the answer to the problem would be better given by a body that expresses an overall point of view.

III.

In the light of what has just been assumed – namely, that Eurojust is competent to give advice on the matter of conflict between two surrender requests of which only one is an European arrest warrant – we need to assess how to solve the specific question brought to our attention.

Preliminarily, it is sure that the facts justifying the French surrender request can support a European arrest warrant, according to the Framework Decision 2002/584/JHA, fully implemented in EU Country A’s domestic legislation (since the French conviction exceeds the minimum limits of 4-month imprisonment, laid down in Art. 2, paragraph 1).

The same goes for the extradition request issued by Croatia, which concerns a conviction to a penalty whose length exceeds those provided for in Art. 2, paragraph 1 of the 1957 European Convention of Extradition.

Having said that, we furthermore believe no issue concerning ne bis in idememerges in this case, as the facts, upon which the two colliding requests are grounded, prove to be certainly different: although the crimes are partially coincident (robberies aggravated by the use of arms), the concrete facts differ as to the date and place of commission and as to the effects on victims. And there may be no doubt that, when Art. 4, paragraph 2 of the Decision on European arrest warrant enables the executing judicial authority to refuse to execute the surrender request (by stating that execution of the European arrest warrant is optional “if the person who is the subject of the European arrestwarrant is being prosecuted in the executing Member Statefor the same act as that on which the European arrestwarrant is based”), it refers to the same historical episode and not to the same abstract crime.

Moreover, the ECJ has stated that “for the purposes of the issue and execution of a European arrest warrant, the concept of ‘same acts’ in Art. 3, paragraph 2 of Framework Decision 2002/584/JHA constitutes an autonomous concept of European Union law”[4].

In other terms, the identity of facts that are grounds of optional non-execution of a European arrest warrant is surely acknowledged under a concrete perspective. In that regard, the ECJ has remarked that “it should be recalled that that concept of the ‘same acts’ also appears in Article 54 of the CISA. In that context, the concept has been interpreted as referring only to the nature of the acts, encompassing a set of concrete circumstances which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected”[5] .

For the same reasons mentioned above, it is also of no relevance, in the light of the ne bis in idem principle, the existence of any sort of “organization” or “conspiracy” between Lubjojevic and his companions in order to commit robberies: even if the material facts could be subsumed into an organized crime provision, there is no information achieved about the identity of his accomplices in the offences committed respectively in Croatia and in France.

In addition, the two surrender requests are both based upon the fact of robbery – that are as said different in concreto – and not upon the fact of the conspiracy.

On the other hand, the circumstance that the facts justifying multiple extradition request may be the same does not play any role in deciding which surrender request has to be given priority, as Art. 17 of the 1957 European Extradition Convention applies “either for the same offence or for different offences”.

The criteria to be used in assessing which country the arrested should be surrendered to are set down in the following provisions:

Art. 16 of the Framework Decision 2002/584/JHA, stating that “in the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition 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”. Consequently, the competent authority of the requested state A must decide the case according to the preference criteriaprovided for the case of multiple surrender requests based upon European arrest warrants.
Art. 17 of the 1957 European Convention on Extradition (which needs to be taken into account since Art. 16 explicitly recalls the circumstances mentioned in the applicable conventions), providing that “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”.

According to the legal framework depicted above, it appears that the requested state both in the case of a homogeneous conflict (that is to say, conflicting requests based on multiple European arrest warrants or multiple extradition requests) and in the case of a heterogeneous conflict (multiple requests grounded on detention order of different kind) has to apply similar parameters.

They are:

the seriousness of the crime,
the place of the offence,
the date of the surrender requests,
the purposes of the surrender request (namely, whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order),
the nationality of the person claimed,
the possibility of subsequent extradition to another State,
other relevant circumstances.

We therefore need to apply the cited criteriato the matter on hand.

Theseriousness of the crime.

Whereas the two robberies committed in France are aggravated committed robberies, the robbery committed in Croatiahas merely been attempted[6]; nonetheless, it is combined with a charge of two attempted murders.

In order to properly apply this parameter, we must first ask ourselves if the comparison must take into consideration the punishment inflicted or the gravity of the facts in itself. In this respect, we believe the evaluation should focus on the second aspect, both because penalties for similar crimes are not comparable among European countries and because Art. 16 of Framework Decision 2002/584/JHA, as well asArt. 17 of the European Convention on Extradition, seems to refer to a concept of substantive criminal law.

Under this perspective, we must conclude that, although the patrimonial damage caused by the robberies committed in France is significantly higher (amounting to about € 1,000,000), the overall gravity of the offence needs to be evaluated also according to the level of violence used, which is much worse in the Croatian crimes, depending on the serious injuries inflicted to the policemen involved.

The date of the surrender requests.

The European arrest warrant issued by Franceis prior to the Croatian extradition request, but this circumstance cannot be used against the latter authority, since before December 2009 Lubjojevic was held in prison in Croatia and there was subsequently no need for asking his surrender.

Since at first sight the two sets of criteriado not seem to be settled in an hierarchical order, the application of the first one (based upon the seriousness of crimes) would end up in favour of the extradition request, while the application of the second criterion(the one based on the time of the request) would lead to give priority to the European arrest warrant.

The place of the offence.

This criterion does not prove very significant in this case, since it leads to give preference to each requesting states’ pretensions: in fact, the crimes justifying the European arrest warrant were committed in France, while the extradition request is based upon offences committed in Croatia.

Both facts do not have transnational implications except for the place where the defendant was convicted, but this is merely the ground for the existence of the question to address here, rather than an instrument for solving it.

The purposes of the surrender request.

The Croatian judgment is definitive, while the sentence issued in France is probably not, given that in the description of the case the definitive nature of the sentence is expressly stated only with regard to the first one.

Add to this that Croatia is requesting the surrender also on the grounds of the crime of evasion committed by the arrested in Croatia.

The nationality of the person claimed.

From now on, we are examining other criteria that the executing authority can take into consideration, especially if relevant in the light of the purposes of the European arrest warrant and in general of the cooperation in surrendering procedures.

Since Art. 17 of the 1957 European Convention on Extradition mentions more specific criteria, the same need to be considered before before applying other general circumstances.

In the case brought to our attention, the nationality of the arrested person is Croatian, even if his link to that country (according to the informations obtained) seems not to be truly stringent.

On the other hand, Art. 6, paragraph 6 of the Framework Decision 2002/584/JHA, as interpreted by the ECJ,gives importance to the possibility of increasing the opportunities of social integration of the person once he or she has served the sentence. Thus, the criterion for identifying the social context in which the risocialization of the surrendered could be easier, during and after the detention, is not so much and only the citizenship, but mainly the place of permanent residence, the main place of interest and family links (such as the raising of the children and whatever element is appropriate to reveal the existence of real roots in that state)[7].

In our case, however, the perspective of risocialization cannot be seen as better in France than in Croatia, as Lubjojevic does not seem to have stringent bindings neither in France, nor in Croatia. Moreover, the fact that the most recent robberies were committed with other companions in France can reveal an insertion in the criminal network in that country: a purpose of risocialization in France is therefore not probable.

Eventually Lubjojevicwill have better possibilities to find a job and to reinsert himself in the “civil society” if he is sent to his homeland (where he apparently has worked at some point).