Written Report

THEMIS FINAL

Bucharest 2010

WRITTEN REPORT

PORTUGAL 1

TEAM MEMBERS:

ANA MIEIRO

RITA SILVEIRA

CELSO ROCHA

THEMIS FINAL

I – Summary

We have been given a practical case to solve regarding the problematic of the issuing of a European Arrest Warrant by France in January 2009 and an International Arrest Warrant issued by Croatia on November 2010 regarding a Croatian citizen. Since Jan Lubjojevic had been arrested on November 6th of 2010 at the main airport of EU Country A, based upon the European Arrest Warrant and the International Arrest Warrant, Croatia issued a formal extradition request addressed to EU COUNTRY A. This country is now faced with two surrender requests on the same person which refuses to surrender voluntarily to either countries. The EU COUNTRY A has asked advice to EUROJUST.

Thus, the two topics we have to analyze are: the role of EUROJUST in these matters and to whom should EU COUNTRY A surrender Jan Lubjojevic.

II - Role of Eurojust

Given the fact that EU Country A has implemented the FDEAW[1], and is also a party to the ECE[2] (and its subsequent Protocols), the relevant legal regime to solve the multiple requests conflict at hands is primarily, and in abstract, composed of articles 16º of the FDEAW and 17º of the ECE.

First, according to article 16 (1) of the FDEAW, whenever two or more Member States issue a EAW for the same individual, what one could address as an homogeneous conflict, the judicial authorities of the executing State are competent to decide whichever will be executed, given a defined set of criteria, summed up as follows:

• Due consideration of all the circumstances; (Especially)
• The relative seriousness; and
• The place of the offences;
• The respective dates of the EAWs’; and
• Whether the EAW was issued for the purposes of prosecution or for execution.

Paragraph (2) adds up to the former provision by allowing the executing State, when taking that decision, to ask Eurojust for advice.

The situation changes if the requests are of a different nature, or what we could address as an heterogeneous conflict. In fact, whenever the request to execute a EAW enters into conflict with a request to extradite, issued by a third country, paragraph (3) stipulates that the competent authority of the executing Member state will decide to attribute preference according “with due consideration of all circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention". This is a remission solely focused on the criteria for the decision.

However, the possibility to seek advice under paragraph (2) is limited to the conflict previewed in paragraph (1). In fact, it seems that the intention of the European lawmaker was clear on this matter. The possibility to ask for the advice of Eurojust is literally for the cases of paragraph (1), and so, that's clearly why such a possibility is systematically constructed under paragraph (2) - immediately after the homogeneous conflict, and before the heterogeneous conflict. Would the European lawmaker want paragraph (2) to be applicable to the heterogeneous conflict of paragraph (3), then it would have clearly stated it. On another hand, the remission is solely focused on the criteria to decide, and not on institutional arrangements specially designed for the European Union, clearly adequate, as it will be shown, to homogeneous conflict solving.

Secondly, article 17 of the ECE - which, naturally, is applicable to homogeneous conflicts - is quite similar to art. 16 of the FDEAW, the criteria to decide which request prevails being almost identical.

Even though both legal regimes are similar, which one prevails?

Because EU Country A is a Member State of the European Union, the FDEAW is applicable to requests issued after 1 January 2004 (art. 32 of the FDEAW[3]). However, art. 31 (1) (a) stipulates that the FDEAW shall “replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States”, one of them being the ECE. On the other hand, art. 16 (3) also refers to the criteria of decision under “the applicable conventions”, remission being made, it seems, only to the criteria, and not to the decision of the conflict itself. And because art. 16 (3) provides for a solution of such a conflict on almost equal terms of those found under art. 17 of the ECE, one must consider that it is the former regime the one applicable to the decision to be taken by EU Country A.

And in such a case, according to article 16 (3) of the FDEAW, Eurojust is not competent to give advice on the matter, given that, in our view, such advice is not inside the general competence of Eurojust, and it would not, as Eurojust is designed, fully respect the ratio behind it's creation.

In any case, let's now briefly analyze Eurojust's legal competences regime in order to check whether it is possible, under its general rules of application, to attribute the specific competence at hands.

Eurojust was created out of a necessity felt by the majority of the European Union Member States to have a new instrument to reinforce the fight against serious organized and cross-border crime (Recitals 1, 2 and 3 of the CDEurojust[4]). Therefore, as a result of a decision taken by the European Council of Tampere, held in October 1999, Eurojust was created. It is composed, under art. 2 of the CDEurojust, of national prosecutors, magistrates, or police officers of equivalent competence, detached from each Member State according to their own legal systems, which would also help consolidate cooperation among authorities.

Eurojust stimulates and improves the coordination of investigations and prosecutions between the competent authorities in the Member States and improves the 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 effect to the principle of mutual recognition" (art. 3 of the CDEurojust[5]). Eurojust supports in any way possible the competent authorities of the Member States to render their investigations and prosecutions more effective when dealing with cross-border crime.

At the request of a Member State, Eurojust may assist investigations and prosecutions concerning that particular Member State and a non-Member State, if a cooperation agreement has been concluded and approved by the Council of the European Union or if there is an essential interest in providing such assistance (art. 3 (2) of the CDEurojust).

Eurojust's competence, in terms of cooperation and facilitation of judicial cooperation, is stipulated in art. 4 of the CDEurojust, and it covers only a given set of serious crimes, with some sort of transnational effect. For other types of offences, Eurojust may assist in investigations and prosecutions at the request of a Member State, under art. 4 (2) of the CDEurojust.

It is also able, through the Council, to conclude cooperation agreements with non-Member States and international organizations or bodies for the exchange of information or the secondment of officers (art. 26 (1), (2) and (3) of CDEurojust[6]).

Summing up, Eurojust is institutionally designed mainly to address the necessities of cooperation between Member States, and even the cooperation with third states is limited by the nature of the agreements.

Of course, to ask for Eurojust's advice would not harm the decision making process of EU Country A. However, in our view, legally, such an advice would be given outside Eurojust's legal competences.

III – France or Croatia: The decision

In the practical case that we are analyzing, two international instruments in criminal cooperation are in conflict. On the one hand we have an EAW issued by a French court, and on the other hand we have a traditional request of extradition.

Until 2002, when it was necessary for a member state of the Council of Europe to ask to another member the surrender of persons “against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”(article 1), an extradition request had to be made to the state where the person was or has been arrested.

To execute this request the state of execution can appreciate the verification of several rules and can refuse the surrender accordingly to the non-verification of those rules. One of those rules is, for instance, the need of the verification of double criminality principle. This principle demands that the acts for which the request has been issued constitute an offence under the law of the executing state.

In fact, the extradition procedure implicates some political response and interference on the decision on the request as it is based on the principle of political opportunity. This traditional system of surrender implicates the relation between two sovereign states and is not uncommon that political principles base a non-executing request.

Differently of this system, in 2002 the Council of European Union adopted a framework decision where a new instrument was created – the European Arrest Warrant. As it is said in the (5) recital of the mentioned above framework decision “the objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures”.

The aim was to replace the traditional system of extradition between EU member sates by a simpler and quicker one. This new figure allows European Union to fulfill its objectives – the creation of an area of freedom, justice and security, and it is based on the mutual recognition principle and mutual cooperation and trust between member states. In fact, as it is said in the European handbook on how to issue an EAW “The Framework Decision reflects a philosophy of integration in a common judicial area and involves a new pattern of cooperation based upon mutual trust between Member States. Thesurrender of nationals is now a principle and a general rule, with few exceptions. These exceptions relate to time limits and to requirements connected with enforcement.”

Differently of the extradition, the EAW is “a judicial decision issued by a MemberState with a view to the arrest andsurrender by another MemberState of a requested person, for the purposes of conducting acriminal prosecution or executing a custodial sentence or detention order.” – article 1 (1) of the FDEAW.

On the other hand, while in the extradition process central authorities play an important role, in the EAW they only work as a support, transmission and information units in general, and thus political principles are, in abstract, not applicable in this matter.

Finally, another difference between the extradition and the EAW is that the Framework decision has suppressed, as a ground for non execution and non surrender, the aforementioned verification of double criminality rule for a list of 32 offences, considered more serious.

In the present case study the facts that sustain the french EAW are one of the 32 offences listed on article 2 (2) of the framework decision (the 17th offence – organized or armed robbery.). In fact, the competent French court issued an EAW for the capture of a Croatian citizen, Jan Lubjojevic, who was sentenced in France to a term of 9 years imprisonment for aggravated robbery[7].

In what concerns the extradition request it can be integrated in the article 2 (1) of the ECE, that says that “extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty. Where a conviction and prison sentence have occurred or a detention order has been made in the territory of the requesting Party, the punishment awarded must have been for a period of at least four months.”

The facts that sustain the extradition request are the conviction on 12 years of imprisonment on counts of attempted robbery and two crimes of attempted murder of Croatian police officers, and, also, the need of prosecution for a crime of evasion, committed in December 2009, which corresponds to an abstract penalty of three years of imprisonment. Thus, the extradition request is also valid and admissible.

The EU country A has arrested on November 6th 2010 the Croatian citizen pursuant to the EAW and the International Arrest Warrant followed by a formal extradition request.

The EU country A has, now, to decide to whom surrender Jan Lubjijevic. As we said before, and because there is an EAW we must find the solution under the rules established by the framework decision on EAW.

Accordingly with article 16 (3) of that framework “in the event of a conflict between a 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 § 1[of article 16] and those mentioned in the applicable convention.”. That paragraph establishes that in the event of a conflict the executing member state must also take into consideration the following circumstances:

-the relative seriousness and place of the offences;

-the respective dates of the EAW and the extradition request;

-whether the warrant and the extradition request have been issued for thepurposes of prosecution or for execution of a custodial sentence or detention order.

Relating to the first circumstance – the relative seriousness of the offences and place of the offences – we can say that the facts sustaining the condemnation on Croatia are more serious than those committed on French territory. In fact, one of those offences was attempted murder of Croatian police officers during the attempt to escape after the robbery in a Croatian bank. In the bank robberies that took place in France no-one had been hurt, and despite firearms had been shown, no shots were fired.

As we said above, the Croatia request also includes the facts occurred on December 2009, in other words, it is also based on the crime of evasion committed on that date. Thus, the Croatian request involves both a request for executing a custodial sentence but also a request for prosecution of a crime. That crime, accordingly with Croatia’s law is punishable with a maximum three years of imprisonment.

In what concerns the dates, as it is said on the description of the practical case, the EAW was issued on December 2009 and the formal extradition request was issued after Jan Lubjojevic had been arrested (after the 6th of November 2010). Thus, the EAW is prior to the extradition request, and has the same date as the IAW, both have been issued just after Jan’s escape from prison.

Finally, and because we had assumed, as we said in the beginning of the present paper, that Jan has been convicted in both states, so, relating to the last circumstance, there are no differences to be noticed between the two requests.

The article 16 (3 and 1) of the FDEAW also establishes that any other circumstance can be taken into consideration by the executing state if it is relevant for the case. One of those circumstances can be the possibility of a future extradition for another state.

On the practical case it is said that Jan Lubjojevic has served two imprisonment sentences, in Croatia, both for theft. Besides, he has no close family links known, and he has never worked as a carpenter or exercised any other profession in his native city of Split. This city is also indicated as his residence, although, there is no record of his presence in his address since 2007.

It is usual that countries don’t extradite their own citizens (under article 6 (1 a) of the ECE). Assuming that Croatia has made a declaration under paragraph (1) (a) and (b) of the said article, prohibiting the extradition of its nationals, a quality ensured by it’s own law and Jan being effectively a national, it is irrelevant that hehas no links to his own country since 2007.

Therefore, taking into consideration that it is usual that countries don’t extradite their own citizensif we, in the present case, decide to execute Croatia’s request we could prevent Jan from serving his conviction in France.

Furthermore, the transfer of convicted prisoners,ruled by the Convention on the transfer of convicted people of the Council of Europe of 1983, is only possible under the conditions of article 3. One of those conditions is that the convicted person is a national of the execution state, under article (3) (1) (a). Thus, if Croatia requests this transfer to France, there wouldn’t be any grounds for France to refuse such measure since all the requisites stipulated in the said article are met, allowing Jan to serve both his French and Croatian sentences in Croatia.

Also, we believe it is important that the space of freedom, security and justice that exists in the European Union should be preserved and, in our opinion, this solution allows that to happen without prejudice of the posthumous execution of the Croatian sentence and prosecution for the crime of evasion.