European arrest warrant and equality of treatment of EU citizens: Croatian example Elizabeta Ivičević Karas University of Zagreb, Faculty of Law

Contents I. Introductory remarks: Implementation of Council Framework Decision on EAW in Croatian legal order - legal and political implications Implementation of Council Framework Decision on EAW in Croatian legal order - legal and political implications II. Jurisprudence of Croatian courts: Exclusion of double criminality verification: statute of limitations - substantive or procedural nature? Exclusion of double criminality verification: statute of limitations - substantive or procedural nature? III. Decision of the Croatian Constitutional Court IV. Case-law of the Court of Justice V. Comparative perspective VI. Conclusions: EAW and equality of treatment of EU citizens?

I. Introductory remarks The Constitution of the Republic of Croatia (Article 9(2)): A citizen of the Republic of Croatia may not be forcibly exiled from the Republic of Croatia nor deprived of citizenship, nor extradited to another state, except in case of execution of a decision on extradition or surrender made in compliance with international treaty or the acquis communautaire of the European Union. A citizen of the Republic of Croatia may not be forcibly exiled from the Republic of Croatia nor deprived of citizenship, nor extradited to another state, except in case of execution of a decision on extradition or surrender made in compliance with international treaty or the acquis communautaire of the European Union.

I. Introductory remarks Act on Judicial Cooperation in Criminal Matters with EU member states: enacted in July 2010:  application of EAW also for offences perpetrated before August 2002  statute of limitations as a ground for optional non-execution of EAW amended end of June 2013:  application of EAW only for offences perpetrated after August 2002  severe criticism from the European Commission  statute of limitations as a ground for mandatory non-execution of EAW amended in October 2013:  application of EAW also for offences perpetrated before August 2002  application of EAW also for offences perpetrated before August 2002

II. Jurisprudence of Croatian Courts Croatian Supreme Court, Kž-eun 11/13, 20 September 2013 “While executing EAW, the court shall not apply domestic legal provisions regarding statute of limitations of criminal prosecution, because the court does not verify the double criminality”. “While executing EAW, the court shall not apply domestic legal provisions regarding statute of limitations of criminal prosecution, because the court does not verify the double criminality”. AJC (Article 10) – verification of double criminality excluded (Aricle 2(2) of Framework Decision on EAW)  verification of statute of limitations is also excluded  verification of statute of limitations is also excludedalthough  Article 2(4) of Framework Decision: double criminality includes (only) constituent elements of the offence  not statute of limitations  AJC (Article 20(2)) – statute of limitations as a ground for mandatory non-execution of EAW – lex loquens, in accordance with Article 4(4) of the Framework Decision on EAW

II. Jurisprudence of Croatian Courts Statute of limitation – substantive or procedural nature? Procedural obstacle  doesn’t affect the double criminality Statute of limitations  application of domestic law Croatian Supreme Court, Kž-eun 2/13, 26 July 2013

II. Jurisprudence of Croatian Courts Germany issued EAW for J.P.  a former Yugoslav and Croatian intelligence agent  suspected of participating in organization of murder of S. Đ., Croatian emigrant in Germany, in Munich in 1983 Germany issued EAW for Z.M.  a former Yugoslav and Croatian intelligence agent  suspected of aiding and abetting another in the perpetration of murder of S. Đ. Croatian prosecutorial authorities (State Attorney’s Office): dismissed crime reports against J.P. and Z.M. – criminal prosecution was statute-barred according to former Yugoslav Criminal Code dismissed crime reports against J.P. and Z.M. – criminal prosecution was statute-barred according to former Yugoslav Criminal Code the county prosecutor forwards the request to competent county court the county prosecutor forwards the request to competent county court

II. Jurisprudence of Croatian Courts EAW against J.P. Zagreb County Court, Kv-eun 2/14, 8 January 2014 Croatian Supreme Court, Kž-eun 2/14-5, 17 January 2014  the court shall not apply domestic legal provisions on statute of limitations of criminal prosecution, because verification of double criminality is excluded  statute of limitations as a ground for mandatory non-execution of EAW - only for offences for which verification of double criminality is not excluded  statute of limitations – substantive nature  integral part of “double criminality”

II. Jurisprudence of Croatian Courts EAW against Z.M. Velika Gorica County Court, Kv-eun 1/14, 15 January 2014  refused to execute EAW because of statute of limitations  widow of S.Đ. appealed Croatian Supreme Court, Kž-eun 5/14-4, Kž-eun 14/14-4, 6 March 2014  accepted the appeal and vacated the decision of Velika Gorica County Court

III. Decision of Croatian Constitutional Court U-III-351/2014, 24 January 2014 the surrender procedure is not a criminal procedure, but sui generis procedure  narrow scope of examination of constitutional complaint in front of the Constitutional Court Constitutional Court “is not allowed to question interpretation of domestic courts regarding domestic law and its application in concrete cases of surrender on the basis of EAW, unless there are presented reasons indicating that the assessment of courts in a concrete case was “flagrantly and obviously arbitrary””

IV. Case-law of the Court of Justice Gasparini and others, C-467/04, 28 September „Article 4(4) of the framework decision,..., permits the executing judicial authority to refuse to execute a European arrest warrant inter alia where the criminal prosecution of the requested person is time-barred according to the law of the executing Member State and the acts fall within the jurisdiction of that State under its own criminal law. In order for that power to be exercised, a judgment whose basis is that a prosecution is time-barred does not have to exist.“

IV. Case-law of the Court of Justice Wolzenburg, C-123/08, 6 October “When implementing Article 4 of Framework Decision…, the Member States have, of necessity, a certain margin of discretion”  when implementing optional grounds for non-execution of EAW as mandatory  when implementing optional grounds for non-execution of EAW as mandatory

V. Comparative perspective Statute of limitation as a ground for mandatory non-execution of EAW: Austria, Belgium, Czech Republic, Finland, France, Greece, Italy, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Slovakia, Sweden Austria, Belgium, Czech Republic, Finland, France, Greece, Italy, Lithuania, Hungary, Malta, Netherlands, Germany, Slovenia, Slovakia, Sweden Statute of limitation as a ground for optional non-execution of EAW: Cyprus, Rumania, United Kingdom, Portugal, Spain, Bulgaria, Denmark, Estonia, Ireland, Latvia, Luxembourg, Poland Cyprus, Rumania, United Kingdom, Portugal, Spain, Bulgaria, Denmark, Estonia, Ireland, Latvia, Luxembourg, Poland

VI. Conclusions Statute of limitations – substantive or procedural nature? Procedure of surrender as sui generis procedure Rule of law? Equality of treatment of EU citizens?

Thank you!

European arrest warrant and equality of treatment of EU citizens: Croatian example Elizabeta Ivičević Karas University of Zagreb, Faculty of Law