MUTUAL RECOGNITION IN CRIMINAL MATTERS AND STATE SOVEREIGNTY: THE CASE OF THE EUROPEAN ARREST WARRANT Dora-Maria Defteras Barrister-at-Law (Lincoln’s Inn and Cyprus Bar Association), LLM, LLB Supervised By: Valsamis Mitsilegas, Prof. European Criminal Law and Director of the Criminal Justice Centre Master of Philosophy (M.Phil) To, my loving family. Thank you for all your support. ABSTRACT Judicial cooperation is in the fore of European Union (hereinafter referred to as EU) integration in criminal matters. In the past decade we have witnessed revolutionary efforts to introduce new mechanisms in this field that have reshaped EU criminal cooperation and have promisingly declared to develop the EU into an area of freedom, security and justice. The pioneer initiative in this area has, without doubt, been the principle of Mutual Recognition, which has been famously pronounced as the cornerstone of judicial cooperation1 and has become the centerpiece of EU judicial cooperation in criminal matters. The adoption of the Framework Decision on the European Arrest Warrant2 signified the introduction of the first concrete measure in the field of EU criminal law implementing the principle of Mutual Recognition.3 To date, it has been implemented by all Member States and has had more than seven years of testing ground. In the context therefore of exploring the impact of the application of the principle of Mutual Recognition in criminal matters on State Sovereignty this thesis takes the European Arrest Warrant as a case study. The hypothesis of this thesis is that the European Arrest Warrant, in theory and practice, challenges essential functions and prerogatives of 1 See for example COM (2004) 401 final, 02.06.2004 p.12, where it is stated that “the principle of mutual recognition must remain as a cornerstone of judicial cooperation in criminal matters”. The reference to mutual recognition as the "cornerstone" of judicial cooperation” in criminal matters in the EU was reiterated 5 years later, in the Hague Program extending the EU Justice and Home Affairs agenda to 2009 (See 2005/C 53/01 Para. 3.3.1.) and in the Stockholm Program extending the EU Justice and Home Affairs agenda to 2014 (see COM (2009) 262 final p.10). 2 Council Framework Decision on the European Arrest Warrant and surrender procedures between Member States of the European Union, of 13 June 2002, OJ L 190, of 18 July 2002 (hereinafter referred to as Framework Decision). 3 Ibid Recital 6, Preamble. 1 Member States that are defining features of their State Sovereignty. The discussion that follows is dedicated to exploring whether State Sovereignty is challenged. To do so, it focuses on three axons around the European Arrest Warrant a) the double criminality requirement and its partial abolition b) the removal of the bar to surrender of own nationals and c) the “depoliticisation” of the surrender procedure. 2 CONTENTS Abstract.................................................................................................... 1 Introduction .............................................................................................. 5 Chapter 1: The Emergence of Mutual Recognition as a Method of European Integration in Criminal Matters at EU level .................................................. 10 Criminal Law and State Sovereignty ........................................................ 36 Chapter 2: The Double Criminality Requirement and State Sovereignty .......... 38 Introduction ......................................................................................... 38 Double Criminality and Sovereignty ........................................................ 39 Scope .................................................................................................. 41 Traditional Extradition ........................................................................ 41 The European Arrest Warrant .............................................................. 44 Legislative History – List Offences ........................................................... 45 Analysis of the List ................................................................................ 49 Advocateen voor de Wereld.................................................................... 60 First Ground ...................................................................................... 62 Second Ground.................................................................................. 63 Analysis of Court Decision In Regards to State Sovereignty ..................... 65 Julian Paul Assange ............................................................................... 68 Concluding Observations ....................................................................... 72 Chapter 3: Removal of the Bar of Surrender of Own Nationals and Sovereignty ............................................................................................ 77 The Development of the Law of the Surrender of Own Nationals in the EU ... 77 European Conventions on Extradition ...................................................... 77 The Commission’s Proposal on the European Arrest Warrant ...................... 79 Framework Decision .............................................................................. 80 Commentary ........................................................................................ 81 3 Constitutional Concerns, Legislative Amendments and State Sovereignty: The Cases of Poland, Germany and Cyprus .............................................. 85 Poland .............................................................................................. 85 Germany .......................................................................................... 91 Cyprus ............................................................................................. 97 Chapter 4: The “depoliticisation” of the European Arrest Warrant and Sovereignty .......................................................................................... 103 Introduction ....................................................................................... 103 Judicial v Political Paragon: The Dilution of Sovereignty in the “depoliticisation” of the European Arrest Warrant .................................... 105 The Maintenance of Sovereignty in the “Judicialisation” of the European Arrest Warrant ................................................................................... 111 Conclusion ......................................................................................... 120 Conclusion ............................................................................................ 123 Research Finding ................................................................................ 123 Analysis ............................................................................................. 123 Bibliography .......................................................................................... 130 4 INTRODUCTION More than two hundred years ago, the Marcquis of Beccaria refused to decide on the issue of whether or not to extradite nationals commenting: “Whether it be useful that nations should mutually deliver up their criminals? Although the certainty of there being no part of the earth where crimes are not punished, may be means of preventing them, I shall not pretend to determine this question, until laws more conformable to the necessities, and rights of humanity, and until milder punishments, and their abolition of arbitrary power of opinion, shall afford security to virtue and innocence when oppressed; until tyranny shall be confined to the plans of Asia, and Europe acknowledge the universal empire of reason by which the interests of sovereigns and subjects are best united.”4 The European Union has attempted in the last decade to create a system of surrender close to the one aspired by the Marcquis of Beccaria and to develop into an area of freedom, security and justice. The pioneer initiative in this area has, without doubt, been the principle of Mutual Recognition, which has been famously pronounced as the cornerstone of judicial cooperation5 and has become the centerpiece of EU judicial cooperation in criminal matters. In this setting, the research question this thesis sets out to answer is: Are there challenges to State 4 Beccaria C., An Essay on Crimes and Punishment, Nicklin H. P., Philadelphia 1819 at p.p.135-136 quoted in Kuhn Z., The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance. The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic, CYELP 3 [2007], 108. 5 Supra note 1. 5 Sovereignty from the application of Mutual Recognition in EU criminal matters? Methodologically, so as to examine this, the European Arrest Warrant is taken as a case study as the adoption of the Framework Decision on the European Arrest Warrant was the first concrete measure in the field of criminal law implementing the principle of Mutual Recognition.6 To date, it has been implemented by all Member States and has had more than seven years of testing ground. The research question of this thesis therefore narrowed down to: Are there challenges to State Sovereignty from the application of the European Arrest Warrant? In examining this research question, a methodological challenge that developed was the interpretation of the concept of “Sovereignty”, as it is a contested concept and could be described as one of the most ambiguous terms in use today.7 The