Pressures of Constitutional Courts

As part of the EU pre-accession works Poland had to transpose a number of framework decisions, including the Framework Decision on the EAW. It was the first framework decision ever transposed into Polish law. Therefore its implementation was considered as a testing ground for future transposition efforts.³ The provisions transposing the Framework Decision on the EAW were inserted into the Code of Criminal Procedure.⁴ The implementing act⁵ was adopted in March 2004 and entered into force in May 2004.

However, in January 2005 a Polish Regional Court (Sąd Okręgowy) submitted the question to the Polish Constitutional Tribunal (Trybunał Konstytucy) in connection with a procedure concerning the surrender of Maria D., a Polish citizen, for criminal prosecution against her in the Netherlands. The Regional Court has lodged the legal question with the Constitutional Tribunal concerning the conformity of Article 607t of the Code of Criminal Procedure, allowing the surrender of a Polish citizen to an EU Member State, with Article 55(1) of the Polish Constitution.⁶ According to the opinion of the Regional Court it was necessary to obtain the verdict of the Constitutional Tribunal on whether Article 607t of the Code of Criminal Procedure was consistent with Article 55(1) of the Constitution, disallowing the extradition of any Polish citizen.

The Regional Court doubted in view of the Constitution, among others, whether the national legislature with the transposing legislation wanted to allow the surrender of Polish citizens. It argued that a pro-European interpretation of Article 55(1) of the Constitution, i.e., the exclusion of the EAW surrender from the extradition ban, is dubious. It claimed that the drafters of the Framework Decision on the EAW only intended to simplify the existing extradition procedure, implying that the surrender procedure was a species of extradition. As pointed out by Łazowski, the referring court implied that the Constitution should have been changed in order to transpose the Framework Decision.⁷

In the view of the Polish Constitutional Tribunal, an answer to the question of whether the prohibition on ‘extraditing’ nationals also applied to ‘surrender’ under the EAW implementing statute had to be given based on a comparison of the two legal institutions.⁸ During the proceedings the then General Public Prosecutor Andrzej Kalwas presented his views. He reached the conclusion that the contested provisions did not breach Article 55(1) of the Constitution. In his opinion, in principle, ‘extradition’ is a treaty based institution […], whereas ‘surrender’ takes place exclusively on the grounds of provisions of European law incorporated into the national law of a Member State. The application in the Framework Decision on the EAW of the term ‘surrender’ in contrast to the term ‘extradition’ should be interpreted […] as intentional and authentic differentiation between two different institutions, and not only as an insignificant linguistic feat.⁹ On the basis of a literal interpretation Polish scholars argued that ‘extradition’ and ‘surrender’ are of a different nature, and thus Article 55(1) was not infringed.¹⁰ However, the Constitutional Tribunal rejected these arguments. In its opinion, ‘extradition’ and ‘surrender’ can only be considered as two separate procedures if they differ by nature. This is not the case—both involve the transfer of a person to another country for the purpose of criminal prosecution or the execution of a sentence. In the words of the Tribunal:

[…] the issue on which the resolution of the present case is dependent consists of the determination of the meaning and possibly of the limits of that constitutional prohibition, as well as the answer to the question, whether the surrender of a Polish citizen indicted on the grounds of an EAW to a Member State of the EU is a form of extradition.¹¹

The Constitution does not regulate those aspects, which determine the difference between the statutory institutions of surrender and extradition. This implies that the surrender of a person indicted on the basis of an EAW could only be regarded as an institution differing from extradition, which is mentioned in Article 55(1) of the Constitution, if its substance was essentially different. As the (core) sense of extradition consists of the surrender to a foreign State of an indicted or convicted person, in order to enable the conduct of criminal proceedings against this person, or the serving of punishment established by a sentence concerning this person, therefore the surrender of a person indicted by the EAW, for the purpose of conduct against that person on the territory of another EU Member State of criminal proceedings or of serving of a delivered sentence of imprisonment or some other custodial measure, must be recognised as its modality.¹²

The Constitutional Tribunal ruled that Article 607t of the Code of Criminal Procedure, within the scope allowing the surrender of a Polish citizen to a Member State of the EU subject to the EAW, is incompatible with Article 55(1) of the Constitution.¹³ It should be not overlooked, as noted Komárek, the Polish Constitutional Tribunal rejected any relevance of EU citizenship for the outcome of the decision.¹⁴

The legal effect of the Constitutional Tribunal’s judgment declaring provisions of Polish applicable law contrary to the Constitution is their annulment. In principle, under Polish national law unconstitutional provisions lose their force on the date of publication of the judgment in the State Gazette. However, exceptionally the Constitutional Tribunal has the power to postpone the date for repeal. In case of acts of parliament the transitional period may not be longer than 18 months. In presented case, the Constitutional Tribunal took into account various legal factors before deciding to delay the annulment of the contested provision by the maximum period available, namely 18 months. As explained, only the provision of the law authorising surrender of nationals was deemed unconstitutional. However, the provision continued to be applied until the deadline set by the Constitutional Tribunal to allow the Polish Government time to bring the constitution into line with the European obligations. During this period Poland therefore continued to surrender its nationals.¹⁵

All Polish courts (including the referring Regional Court) had to apply Article 607t of the Code of Criminal Procedure during the transitional period of 18 months following the publication of the judgment. The Constitutional Tribunal argued:

The effect of the deferral of the moment of cessation of the binding force of Article 607t of the Code of Criminal Procedure is such that over the period of 18 months after the publication of the judgment of the Constitutional Tribunal the respective provision should continue to be applied by the administration of justice […], in spite of the fact that the presumption of its constitutionality has been refuted. Polish courts, therefore, cannot refuse to surrender Polish citizens indicted by EAWs. […]

[…] the courts of law cannot refer to the principle of direct application of the Constitution in such manner, which would lead to disregarding the verdict of the Constitutional Tribunal and to refusal of surrender of a Polish citizen under the EAW based on reference to Article(1) of the Constitution. The Constitutional Tribunal has ruled not only that the provision referred to in the legal question is inconsistent with Article 55(1) of the Constitution, but also that despite the establishment of its unconstitutionality it should be applied by the courts over the duration of the term specified in the judgment.¹⁶

One of the arguments leading up to the imposition of the 18 months transitional period was to allow operation of the surrender machinery while the necessary constitutional revision was made.¹⁷ In order to support this decision, the Constitutional Tribunal argued:

[…] the system of surrender of persons between court bodies created by the Framework Decision on the EAW […] should serve not only for the implementation of the objective of the Union consisting of the establishment of an Area of freedom, security and justice. […] the institution of the EAW is of major significance also for the proper functioning of the administration of justice in Poland, and above all for the strengthening of internal security, and therefore the assurance of its ability to function ought to constitute the highest priority for the Polish legislator. […]¹⁸

The Polish Constitutional Tribunal, in declaring the implementing law unconstitutional, referred to the wider context of the Framework Decision on the EAW and urged the national legislator to move towards a more advanced level of co-operation in criminal matters.¹⁹ It stated that in order to completely implement the Framework Decision into Polish law, a constitutional amendment is required, as well as a re-adoption of the overturned Code of Criminal Procedure.

In addition, the Constitutional Tribunal also emphasised that the Constitution requires that Poland must properly implement EU framework decisions. Action was needed in order to secure proper and complete transposition of the Framework Decision on the EAW. The only available option was revision of Article 55(1) of the Constitution. This is what the Constitutional Tribunal suggests when it argues that:

…taking into the account Article 9 of the Constitution, which states that ‘The Republic of Poland shall observe international law binding it’ and given the obligations implied by membership of Poland in the EU, it is indispensable to change the law in force in such manner, as to enable not only full implementation of the Framework Decision on the EAW […], but also such as to assure its conformity with the Constitution.²⁰

Amendments of the Constitution have been applied since many years as necessary means of assuring the effectiveness of EU law in national legal orders of the Member States. Without examining the specificities and the sources of the judgments, which were decisive in particular cases for the resolution of the issue of necessity of amendment of the Constitution, it is still worth noting a number of examples of such constitutional practices in the Member States of the EU.²¹

As a consequence of rulings, the Polish Code of Criminal Procedure was amended following the revision of the Constitution in November 2006. New Article 55 of the Constitution was made directly applicable in Polish law by decision of the Constitutional Tribunal.

As pointed out by Łazowski, not surprisingly the judgments on the EAW attracted considerable attention. The relationship between national and EU law was at the centre of it. It deals with Third Pillar law and its status in the Polish legal order. However, the decision was received with mixed feelings in academic writing.²² For example, in the opinion of Komárek, the Polish Constitutional Tribunal put its decision into the European context, seeing the importance of functional co-operation among the EU Member States. Although it probably could escape the constitutional conflict by interpreting the prohibition of extradition in a way which was more open to EU law, it used all its powers to avoid any negative consequences of such a conflict.²³

The German government and its administration strongly support the principle of mutual recognition and with it the EAW. Therefore the implementing legislation which had been drafted by the Ministry of Justice aimed at transposing the Framework Decision on the EAW as closely as possible into national law.²⁴ However, it became quite a difficult undertaking for German legislator. It has been implemented twice—in 2004 and in 2006.

In the German system of law, the national law implementing the EAW—the ‘first’ European Arrest Warrant Act²⁵ of 2004 (in this chapter hereinafter ‘EAW Act’)—amended the national Act on the International Judicial Assistance in Criminal Matters.²⁶ German legislators decided to rule EAW proceedings a special case of international extradition proceedings, rather than to formally install a new kind of European surrender. General rules for international extradition only had to be amended for the specific requirements of EAWs. Thus, introducing the EAW in Germany was only meant to divide between international extradition and European extradition.²⁷

With the EAW Act, the German legislature complied with its obligation to implement the Framework Decision on the EAW. It came into effect in August 2004 and was used on a regular basis until the day of the ruling of the German Federal High Constitutional Court (Bundesverfassungsgericht) of July 2005.

The hearing arose from a challenge by Mamoun Darkazanli, with both German and Syrian nationality, to an EAW issued by Spain. Spain accused him of being a crucial figure in the Al-Qaeda terrorist organisation. Judicial authorities stated that he was charged of having been active in Spain, Germany and Great Britain since 1997 as one of the key figures of the Al-Qaeda terrorist network in the logistic and financial support of this organisation. Among others, he had been Osama bin Laden’s permanent interlocutor and assistant in Germany.²⁸ The EAW was issued for exactly the sort of offences that the European Council had in mind when proceeding with the EAW initiative.²⁹ As noted Komárek, it is ironic that the case before the German Federal High Constitutional Court arose from a constitutional complaint lodged by a person suspected of being an active and important member of a terrorist organisation that committed the 9/11 terrorist attacks in the United States of America.³⁰

In October of 2004, German officials arrested Mr. Darkazanli. His surrender (extradition) to Spain was approved by a German Court. However, the defendant launched a constitutional complaint before the German Constitutional Court challenging the decision on a wide range of constitutional grounds. These included claims, among others, that the EAW and the German implementing legislation lacked democratic legitimacy, that the abolition of dual criminality requirement would result in the application of foreign law within the domestic legal order, and that the defendant’s right to judicial review was breached.³¹

It should be noted that the Federal High Constitutional Court structured its reasoning pursuant to the model of an ‘abstract review of norms’ (abstrakte Normenkontrolle) without going into the factual details of the case at hand and its impact on the applicant. At the end of proceedings, the Court declared the ‘first’ EAW Act as null and void ³² (nichtig), because it violated the German Constitution, i.e. the Basic Law³³ (Grundgesetz). In the words of Sievers, the judgment came as a shock to parliament, government, and administration […].³⁴

The Court’s ruling was essentially based on the following considerations: first, the German implementing law infringed the Article 16(2) of the Constitution, which contains a ban on extradition of German citizens,³⁵ and, second, the German implementing law infringed Article 19(4) of the Constitution by excluding recourse to a court against the grant of extradition to an EU Member State. The Court argued:

[…] the co-operation that is put into practice in the ‘Third Pillar’ of the EU in the shape of limited mutual recognition, which does not provide for a general harmonisation of the Member States’ systems of Criminal law, is a way of preserving national identity and statehood in a single European judicial area.³⁶

When adopting the Act implementing the Framework Decision on the EAW, the legislature was obliged to implement the objective of the Framework Decision in such a way that the restriction of the fundamental right to freedom from extradition is proportionate. In particular, the legislature, apart from respecting the essence of the fundamental right guaranteed by Article 16(2) of the Basic Law, has to see to it that the encroachment upon the scope of protection provided by it is considerate. In doing so, the legislature has to take into account that the ban on extradition is precisely supposed to protect, among others, the principles of legal certainty and protection of public confidence as regards Germans who are affected by extradition […].³⁷

[…] the confidence of the prosecuted person in his or her own legal system is protected in a particular manner by Article 16(2) of the Basic Law in conjunction with the principle of the rule of law and also by the principle of subsidiarity […] precisely where the act on which the request for extradition is based shows a significant connecting factor to a foreign country […].³⁸

Thus, the ‘first’ German EAW Act was contrary to the German constitutional guarantee concerning non-extradition of nationals. As a consequence of the Court’s ruling, Germany refused to extradite Mr. Darkazanli. Subsequently, he was released from German captivity.

The German applicable law was void ‘only’ as far as German citizens are concerned. The judgment was based on the German citizenship of the requested person, the protection of the principle of legality and the protection of the principle of recourse to the courts against the grant of extradition—both principles being issued from the Basic Law.³⁹ The German national authorities were not allowed to surrender German nationals to the other EU Member States applying an EAW. As explained, it was due to the Federal High Constitutional Court’s decision that the ‘first’ EAW Act had interfered with their right not to be extradited pursuant to Article 16(2) of the German Constitution (Basic Law). Germany stopped surrendering or even extraditing its nationals. It agreed to surrender other wanted persons only under the extradition arrangements. It did, however, continue to issue EAWs for other Member States.

The situation gave rise to an unprecedented period of legal uncertainty. Since the German court handed down its EAW decision, Spain debated whether to take reciprocal action against Germany. In July 2005, the Spanish National Court (Audiencia Nacional) announced that it would annul all EAWs issued by Germany.⁴⁰ However, Spain’s decision to refuse to execute EAWs issued by Germany was contrary to the Framework Decision on the EAW. Moreover, also Hungary invoked the principle of reciprocity. Both Spain and Hungary refused to recognise the EAWs that Germany continued to issue. They considered that as Germany was no longer applying the principle of mutual trust, it could not demand in return that the other Member States accept its requests for the surrender of non-nationals.⁴¹

As argues Van Sliedregt, there is the national supremacy approach represented by the German Federal Constitutional Court ruling.⁴² In the opinion of Tomuschat, the decision was rather disappointing.⁴³ In the German literature it has been harshly criticised that the Court based its reasoning mainly on historical arguments, thus overemphasising the historically emerged close relationship between the German state and its citizens.⁴⁴ Mitsilegas argues that in reaching its decision, the Federal High Constitutional Court focused predominantly on concepts of legitimacy, territory and citizenship and the protection of fundamental rights. A central concept was the special bond between the citizen and the State, and the legitimate expectations of citizens to be protected within the framework of their State of belonging.⁴⁵ In the opinion of Pollicino the underlying theme of the whole Court’s reasoning about the decision is a sense of ill-concealed distrust in the legal systems of the other Member States as to the safeguarding of the accused person. By reading the ruling, it is rather evident how, behind the attempt to verify the responsibility of the German legislator in the transposition activity, the Court’s actual aim was to halt the acceleration process, which followed the adoption of the Framework Decision on the EAW […].⁴⁶

The Constitutional Court did not deal with possible violations that could have been arisen from the Framework Decision on the EAW. It argued that the Framework Decision itself does not contradict the German constitution.⁴⁷ The Constitutional Court dealt with only the constitutional violations that arose from the national implementing legislation, i.e. the ‘first’ German EAW Act. It ignored the arguments and rulings of the case of Pupino as mentioned by the Court of Justice. Hinarejos Parga questioned what would have been the consequences of Pupino, the case of the Court of Justice, if taken into account by the Federal High Constitutional Court? She argues that, in principle, the Court should have tried to discharge its duty of loyal co-operation and interpreted national law, as far as possible, in the light of the wording and—most important here—purpose of the Framework Decision on the EAW. The measure at stake was a national law which implemented a framework decision, and the question was whether it ran counter to the Constitution. The ‘Pupino principle’ should have pressed the Court to make all possible attempts to reach a conclusion that enabled Germany to fulfil its duties under EU law. Hence, the Court should have done whatever was in its hand to ensure that EU law (in this case the Framework Decision on the EAW) was enforced and complied with. This means, ideally, preserving the implementing law or, if not possible, at least curtailing the damaging effects of its nullity.⁴⁸

As to the relationship between EU law and the domestic Constitution, the Polish Constitutional Tribunal’s approach was markedly different to that of the German Constitutional Court. The Polish Tribunal placed great emphasis on the obligation of national courts to interpret domestic law in a manner compatible with EU law—thus following the approach of the Court of Justice in the case of Pupino and extending indirect effect to Third Pillar measures. It also stressed the importance of the EAW for the functioning of the administration of justice and for improving security. It should be given the highest priority by the Polish legislator. Emphasising security over fundamental rights and the need to observe Poland’s obligations under EU law over the national constitution, the Tribunal appeared more EU-friendly than its German counterpart, but left it to the legislature to find an appropriate solution.⁴⁹

As shown in the fourth chapter, Deen-Racsmány and Blekxtoon consider the Framework Decision on the EAW as undeniably a milestone in the history of the extradition of nationals.⁵⁰ However, the decisions by the Constitutional Courts in Poland and Germany and Spanish Court called into question the future effectiveness of this novel approach in the EU. Both the German and Polish decisions regarding the EAW, as well as Spain’s reaction, brought rise to numerous questions and concerns. Mann questioned, among others, ‘Can Germany and Poland reconcile the EAW with their own constitutional provisions?’, ‘Is the EAW in danger of being found unconstitutional in other EU countries?’⁵¹

Installing a new ‘second’ European Arrest Warrant Act was necessary to surrender German nationals and comply with requirements of the Framework Decision on the EAW.⁵² The surrender (in German terminology ‘extradition’) of a German citizen to an EU Member State was not possible as long as the German legislature adopted a new law implementing the Framework Decision on the EAW.⁵³

In comparison to Poland, the problem with Germany’s EAW implementation was far less dire. A constitutional revision was not required to alleviate the problem. The legislature needed only adopt a new version of the EAW Act that would take full advantage of the latitude provided for in the Framework Decision on the EAW itself. Moreover, the German government wants to alleviate the problem as soon as possible.⁵⁴ In a memorandum from the then German Federal Minister for Justice Brigitte Zypries to her colleagues in all other EU Member States, she stated that she was committed to submitting a new act to implement the European arrest warrant, which takes the concerns of the Federal Constitutional Court into account, within the shortest possible period of time.⁵⁵

As a consequence, a new lawmaking proceedings were accelerated and in 2006 the ‘second’ European Arrest Warrant Act⁵⁶ was adopted in Germany. It went into force in August 2006. Again, it did not enter into force as a separate law but rather provisions amended the German Act on International Assistance in Criminal Matters. The surrender procedure according to the EAW is understood as a specific form of international extradition.⁵⁷

In the Czech Republic, similarly to Poland, the provisions transposing the Framework Decision on the EAW were inserted into the Code of Criminal Procedure⁵⁸ (however without amending the Constitution). The implementing act⁵⁹ was adopted in July 2004 and entered into force in November 2004.

In November 2004 a proposal was delivered to the Constitutional Court of the Czech Republic (Ústavní soud) by a group of Members of Parliament from the Lower House and a group of Senators from the Senate for the annulment of, among others, the provisions of the Code of Criminal Procedure. However, the Constitutional Court ruled that the proposal to annul the Czech national legislation implementing the EAW is rejected.⁶⁰ Thus, it refused to annul the transposition law concerning the EAW. As pointed out by Hamuľák, unlike the Polish and German cases, there did not stand in the background to the proceedings before the Constitutional Court any real person that would be related to the applying the EAW.⁶¹