Constitutional challenges against the EAW at the national level

As said before, as Framework Decision need to be implemented into national law, the legality of such acts could be challenged both at the national and the European level. In this section we will focus on cases which question the constitutionality of national implementation laws. In fact, before the adoption of the Framework Decision, as many as fourteen of the then existing twenty-five Member States42 included in their constitutions a stipulation which prohibited43 or in some manner limited44 the extradition of their citizens. Therefore it is hardly surprising that a innovative system established with the EAW, which included some rather drastic changes, such as the one dealing with the prohibition or limitation of citizen extradition and, consequently, radical interventions within national legal systems, resulted in few constitutional conflicts in several Member States.

Certain Member States, such as Portugal, Slovakia and Slovenia, had chosen solutions which included constitutional amendments in order to comply with the EAW Framework Decision provisions. In such instances there had not been opportunity to question the implementation laws’ constitutionality. Other Member States had enforced their own implementation laws. Subsequently, after the EAW Framework

42

See Z. Deen-Racsmány, ‘Lessons of the European Arrest Warrant for Domestic Implementation of the Obligation to Surrender Nationals to the International Criminal Court’, 1 Leiden Journal of International Law (2007) pp. 167-191. 43

Such citizen extradition prohibition stipulation had been built in the constitutions of: Austria, Cyprus, Czech Republic, Estonia, Finland, Italy, Latvia, Lithuania, the Netherlands, Germany, Poland, Portugal, Slovakia and Slovenia.

44 _{Such solutions assuming certain exceptions to the citizen extradition prohibition} could have been found in the constitutions of Estonia (Art. 36.2), Italy (Art.26.1) and Lithuania (Art. 13).

Anita Blagojević– Csongor Herke– Ágoston Mohay

Decision implementation three requests for national implementation regulations constitutional review had been submitted.

Chronologically, the first decision made by the Polish Constitutional Court,45 of 27 April 2005, stated that the legal provision implementing the EAW (Article 607(1) of the Criminal Procedural Law) and pertaining to Polish citizens extradition is opposed to the Constitution prohibiting the extradition of Polish citizens to other countries. Nevertheless, the Constitutional Court recognized the importance of EAW in the same decision, emphasizing that the EAW ‘has crucial significance for the functioning of the administration of justice and, primarily – as a form of cooperation between Member States assisting in the fight against crime – for improving security’. It should be mentioned that the Polish Constitutional Court postponed its decision for the period of eighteen months in order to synchronize the Constitution with the EAW Framework Decision, which has been done.

The German experience with the implementation of Framework Decision was quite interesting and of significant importance to the German legal system, as well as the EAW efficiency in the European Union.46 The German Federal Constitutional Court (Bundesverfassungsgericht) in their decision of 18 July 2005 declared the entire German implementation law unconstitutional and abolished it, on the basis of it being in contradiction to the constitutional right against the unduly extradition (due to the fact that the legislator failed to take advantage of the flexibility provided by the EAW Framework Decision, that is, they failed to take advantage of the margins within the Framework Decision), as well as the fact that the implementation law breaches the access to court guarantee (due to the lack of court controlled decision on extradition in some cases).47 The new implementation law was enacted on the 2nd of August 2006.

Judgment of the Polish Constitutional Tribunal, P 01/05, 27 April 2005, English Summary available at: <http://www.trybunal.gov.pl/eng/summaries/documents/ P_1_05_GB.pdf>, (last accessed on 20.07.2010).

46

See Z. ðurñević, ‘Europski sud pravde i legitimitet europskog uhidbenog naloga’ [The European Court of Justice and the Legitimacy of the European Arrest Warrant] 2 Hrvatski ljetopis za kazneno pravo i praksu (2007) p. 1024.

47 _{The German Federal Constitutional Court decision resulted in stay of execution} for all orders in Germany and based on the principal of reciprocity certain countries refused to execute German orders (for instance, Spain on several occasions).

The legal characteristics of the European Arrest Warrant, its implementation in...

Likewise, The Supreme Court of Cyprus had in their decision of 11 November 200548 declared the extradition of the Cyprian citizens unconstitutional, but as soon as 18 June 2006 the constitutional provision on the extradition of Cyprian citizens has been changed on the condition that the surrender of nationals is only possible for acts committed after the accession to the EU (that is, since 1 May 2004). Contrary to the previous three examples, other constitutional challenges to the Framework Decision, namely those before the Constitutional Courts of Ireland, Greece and Czech Republic, resulted in their own implementation legislature in accordance with the Constitution.49

Particularly worth mentioning is the decision by the Czech Republic Constitutional Court of 3 May 2006,50 denying a group of representatives’ proposal for declaring the Czech implementation law unconstitutional.51 This decision is interesting for two primary reasons: because ‘it developed in detail the concept of mutual trust’52 and because the decision of the Court in this case is based on teleological interpretation of the constitutional provisions. Namely, the Czech Constitutional Court considered the ratio of the traditional extradition and the European Arrest Warrant and has stated that the significant variation between the two lies in the mutual trust or distrust relation. According to the Court statement, while traditional extradition had its ratio in mutual distrust between the Member States, the EAW has its own ratio in the high level of trust among the Member States, which is

48

Judgment of the Supreme Court of Cyprus no 295/2005, Council Document no 14281/05, 11 November 2005

49

See Górski and Hofmanski, eds., op. cit. n. 19. 50

Judgment of the Czech Constitutional Court No. Pl. US 66/04 from 3rd May 2006, available in English at:

<http://www.eurowarrant.net/documents/cms_eaw_id862_1_Decision%20Czech%2 0Constitutional%20Court-001_EZR-66-06-ENG.doc>, (last accessed on 20.07.2010).

51

The ground arguments of the representatives were related to incompatibility of the implementation law and Art. 14(4) with the Czech Constitution ( according to which ‘[n]o citizen may be forced to leave his or her country’) and the insufficient explanation of the partial elimination of the double criminality requirement. 52

M. Fichera, ‘The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?’, 1 European Law Journal (2009) p. 83., available at: <http://www3.interscience.wiley.com/cgi-bin/fulltext/121590091/PDFSTART>, last accessed on 20.07.2010).

Anita Blagojević– Csongor Herke– Ágoston Mohay

the reflection of the contemporary period ‘of high mobility of European people across the EU and increasing inter-state cooperation’.53