Zdeněk Kühn DRAFT of an article which is under construction, please do not cite

Transcription

1 Constitutional Monologues, Constitutional Dialogues or Constitutional Cacophony? European Arrest Warrant Saga in Germany, Poland and the Czech Republic Zdeněk Kühn DRAFT of an article which is under construction, please do not cite A specific regime of European constitutional tolerance 1 makes necessary at least a certain type of domestic acceptance of doctrines made by the ECJ. The principle of primacy of European law is being developed by both the ECJ and national high courts. The logic of European Integration as well as societal evolution shifted the important last word of the final acceptance or veto power over any European rule on national high courts, especially constitutional courts. Politics of the old EU Member States internalized this phenomenon and some states use their domestic constitutional card skillfully during negotiating important measures on the European level. That is why it became customary that EU lawyers often ask what the positions of national high courts on EU law are. The New EU Member States developed strong constitutional courts in the course of the 1990 s; it might be therefore interesting to ask what is the position of these courts to EU law and its application within the national legal system. After the brief introduction the second section shortly summarizes the constitutionalization of European law by the high courts of the old EU Member States. Then, constitutional courts of the New EU Member States are introduced in the third and fourth section. The fifth and sixth section provides the core of the paper: the case study dealing with the constitutional analysis of the European Arrest Warrant in Germany, Poland and the Czech Republic. Whereas the German and Polish constitutional courts annulled the national implementation of the European Arrest Warrant (though for different reasons), the Czech Constitutional Court Associate Professor, Charles University Law School, Prague, the Czech Republic; Ph.D., Charles University Law School (2001); LL.M., University of Michigan Law School (2002); S.J.D. Candidate, University of Michigan Law School (2003). All translations are mine unless otherwise indicated. 1 Cf. most recently Joseph H.H. Weiler, On the power of the Word: Europe's constitutional iconography, 3 INT L J. OF CONSTITUTIONAL L. 173 (2005), part 7.

2 upheld the respective Czech law. Finally, the seventh section offers my moderate conclusions. 1. An Overture: Important Decisions Forthcoming In the three-year saga of restaffing the Czech Constitutional Court by new President Klaus, the peak of new President s inability to offer reliable nominees to the Czech Senate came with the nomination of state prosecutor Ms Novotná in December The Senate reached almost unanimity in rejecting the nominee (11 in favor : 65 against), despite the fact that President s own Party controlled almost half of the Senate. The nominee ridiculed herself for her letter to President, a well known Eurosceptic, in which she denounced the European Arrest Warrant (constitutionality of which was pending before the Constitutional Court), while at the same time she was writing articles celebrating this measure. When the facts of her letter to President escaped to the public, the nominee was unable to explain her apparent inconsistency. 2 Several months later, in spring 2005, President Klaus, who always criticized referrals to the Constitutional Court by his predecessor Havel, sent a letter to a Chief Justice of the Constitutional Court in which President urged the Chief Justice to review the European Constitutional Treaty. Because the Czech Republic has not started the process of ratification, and thus the Court did not have a formal jurisdiction over the issue, 3 the President s request was politely rejected by the Chief Justice. 4 These two examples show that respective postcommunist political actors already realized the importance of the constitutional court in pursuing their political agenda. Three Central European constitutional courts of Poland, Slovakia, and the Czech Republic already decided seminal issues of the relation of their legal and political system to the EU and EU law. The Polish Constitutional Tribunal (PCT) has already adjudicated 2 Moreover, the nominee s long membership in the former Communist Party of Czechoslovakia contributed to her failure. Cf. the Senate of the Czech Republic, December 16, 2004, stenographic records, available at (in Czech). 3 The Court declined to do so because according to the law President can ask for an international treaty s review not until he receives the treaty for ratification (Art. 71a of the Constitutional Court Act), which is at the very end of the whole internal procedure providing for the ratification (i.e. after both the Chamber of Deputies and the Senate approves it). Because the ratification process of the ECT in the Czech Republic has not started, neither President nor other authorities have the right to refer the issue to the Court. 4 President was apparently well aware of that and his letter might be interpreted as a political gesture of the man who indebted most of his political agenda to the critique of the EU.

3 several important cases, including constitutionality of elections to the EU Parliament, constitutionality of the Polish Accession Treaty. The PCT also declared unconstitutionality of the implementation of European Arrest Warrant by the Polish law. In Slovakia two important cases are before the Slovak Constitutional Court (SCC): first, the Slovak Court already decided that the positive action in favor of underprivileged race is not compatible with the Slovak Constitution; 5 the second, pending case, presents the issue whether parliamentary ratification of the European Constitutional Treaty suffices or whether the referendum is required by the constitution. 6 In the Czech Republic, the issues of constitutionality of sugar quotas and especially that of the implementation of the European Arrest Warrant have been decided by the Czech Constitutional Court (CCC). These examples show that New EU Members constitutional courts swiftly took or are about to take their role of final arbiter of constitutionality of the EU action. That is why it is worth discussing these courts general attitude to EU law and to fundamental issues of constitutionality and law. The issue of European Arrest Warrant and extradition of nationals first decided by the PCT which has been meanwhile adjudicated also in Germany and the Czech Republic might be particularly useful in my analysis European Law and the Old Member States High Courts In Western societies of the 20th century and early 21st century the constitution plays a new key role in legitimizing the government. The judicialization of politics is now a common European phenomenon. The courts in Europe of our time hold in effect a sort of veto power over many important political decisions. With the collapse of the original strictly conceived model of separation of powers, courts are no longer unwilling and mechanical enforcers of rules made by political process in the parliament. The judicialization of politics and society seems to be a partial aspect of societal evolution. 8 In Europe at the onset of the 21st century, politics has become deeply judicialized and the judiciary has become profoundly involved in issues which used to be traditionally 5 See the decision PL. ÚS 8/ of 18 October 2005, available in Slovak at 6 In more detail in English see (visited 26 September 2006). 7 One must also note the Cypriot judgment of the Supreme Court of Cyprus of 7 November 2005, Αρ. No. 294/2005 (a short English summary available as a Council document No 14281/05 of 11 November 2005). Due to the language barrier I cannot include this decision in my analysis. 8 Günther Teubner, Juridification: Concepts, Aspects, Limits, Solutions, in JURIDIFICATION OF SOCIAL SPHERES 3, 27 (Günther Teubner ed., 1987).

4 assigned to politics. At the same time, the expansion of New Constitutionalism also meant that rights rhetoric proliferated and the court-like rhetoric is now used in the political discourse generally. 9 Considering this fact, it is not surprising that the phenomenon of New Constitutionalism started to influence emerging constitutionalization of the European Communities in the 1970 s. A specific regime of European constitutional tolerance 10 involves constitutional and methodological pluralism among the Union and its Members including the plurality of views on what is / whether there is any Grundnorm of the legal system. This sort of pluralism makes the domestic judicial acceptance of European doctrines a necessary condition of the proper application of EU law. Thus it is fair to say that the principle of primacy of European law cannot be understood by the ECJ s perspective only. Instead, the primacy of EU law is formed by both the ECJ and national high courts. The logic of European Integration empowered the national ordinary courts and disempowered national constitutional courts by the European-style decentralized judicial review of national law for its compliance with EU law. 11 At the same time the logic of New Constitutionalism and the judicialization of politics shifted the important last word of the acceptance or veto power over any European rule on national high courts, especially constitutional courts. Thereby national constitutional courts appeared on the European scene even stronger. The lead was taken by the German Federal Constitutional Court (GFCC) in its in/famous Maastricht decision, 12 which on legalistic basis protects German sovereignty within the Union from the uncontrollable expansion of the Union power at the expense of the nation states. 9 Cf. generally ALEC STONE SWEET, GOVERNING WITH JUDGES. CONSTITUTIONAL POLITICS IN EUROPE, Oxford University Press, Oxford The term elaborated by Joseph Weiler. Cf. most recently Joseph H.H. Weiler, On the power of the Word: Europe's constitutional iconography, 3 INT L J. OF CONSTITUTIONAL L. 173 (2005), part 7. Cf. the numerous works on multilevel constitutionalism by Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited?, 36 C. M. L. REV. 703 (1999); Multilevel Constitutionalism in the European Union, 27 EUR. L. REV. 511 (2002); Miguel P. Maduro, Contrapunctual Law: Europe s Constitutional Pluralism in Action, in: SOVEREIGNTY IN TRANSITION (NEIL WALKER ED. 2003); the concept of legal pluralism as defended by Italian theorists, e.g. Massimo La Torre, Legal Pluralism as Evolutionary Achievement of Community Law, 12 RATIO JURIS 182 (1999) etc. 11 See Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), 1978 E.C.R. 629 [1978] and Victor Ferreres Comella, The European model of constitutional review of legislation: Toward decentralization? 2 INT L J. OF CONSTITUTIONAL L. 461 (2004) 12 BVerfGE 89, 155 (1993), in English 33 I. L. M. 388 (1994).

5 Although in that way constitutional courts acquired enormous power, it does not seem that national political elites are disappointed. In fact, Western European national politics was able to internalize these powers which are supposedly vested in their constitutional courts. Far from being disappointed from the rise of their constitutional courts powers, national politicians in turn might play the constitutional card 13 during European negotiations, claiming that a draft of European legislation they oppose is likely to be found unconstitutional by their constitutional court. European constitutional justices are generated via political process and unlike the United States Supreme Court justices they do not have life tenure (with the exception of Austria, Belgium, and Malta). 14 This seems to guarantee that justices will cooperate with their national political elites on defending their respective countries interests and, at the same time, would not go far beyond the mainstream viewpoints on the proper relation between European and national legal systems. Perhaps this is the reason why constitutional justices could claim their power which, if truly exercised, would destroy the complex design of the European Union The Postcommunist Constitutional Courts: Introducing the Actors In Poland a constitutional tribunal was created in 1985 during the final crisis of communism. The PCT did not become an important legal and political factor until 1989, during the last months of the Polish communist regime. Its competences were broadened in the course of the 1990 s, modified with the enactment of the new Polish Constitution of In Hungary, one of the most important decisions of the round tables between the communist government and the opposition was creation of the activist constitutional 13 Mattias Kumm, The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty, 11 EUR. L. J. 262, 281 (2005). 14 Another obvious exception where justices have life tenure is the group of supreme courts of countries where these courts also exercise constitutional review (Ireland, Scandinavian nations). 15 The most influential German doctrine of both kompetenz-kompetenz and substantial limits imposed on European Integration (Maastricht ruling) as well as the minimal level of protection of human rights at European level (BVerfGE 73, 339, Solange II of 1986) thus in this sense carries the role of nuclear weapons during the Cold War. All relevant parties know about the impact of powers they claim, while at the same time they know that their real strength lies not in their actual use, but merely in their potential to be used. This comparison is made in Joseph H. H. Weiler, Ulrich Haltern, Constitutional or International? The Foundations of the Community Legal Order and the Question of Judicial Kompetenz-Kompetenz, THE EUROPEAN COURT AND NATIONAL COURTS DOCTRINE AND JURISPRUDENCE 362 (Anne-Marie Slaughter, Alec Stone Sweet, Joseph H. H. Weiler eds., 1998). 16 Cf. MARK BRZEZYNSKI, STRUGGLE FOR CONSTITUTIONALISM IN POLAND, New York: St. Martin s Press 1998.

6 In Poland, the candidates to the PCT are nominated by at least 50 deputies of the court. 17 Finally, the Czechoslovak constitutional court, originally established in 1920 and abolished by the communists, was recreated in Both republics which emerged from the vanished Czechoslovak Federation established their own constitutional courts in lower house (the Sejm) or by the presidium of the Sejm, and elected by simple majority of votes in the Sejm. 19 Unlike Germany, where bargaining between the opposition and the coalition is necessary, 20 the Polish law means that the coalition controlling a simple majority of the lower house can elect justices completely disregarding the opposition. The practice shows, however, that the PCT has always been predominantly academic court, and the process has selected the best Polish academics. In August 2005, of the fifteen justices at the PCT eleven were law professors. 21 Between 1985 and 2001 thirty six Polish justices served at the PCT, which number included twenty four law professors (five of whom were also experienced practitioners), five ordinary judges, three prosecutors, and two practicing attorneys. 22 It is fair to say that the Polish system despite the absence of any check and balances generated the most respected postcommunist constitutional court. A different picture is presented by the Hungarian model. In Hungary, candidates are proposed by the special parliamentary committee consisting of one member each from the factions of parties represented in Parliament. Candidates must be elected by two thirds of parliamentarians. Although this system succeeded in having a primarily 17 There is a considerable bulk of the literature about the Hungarian Constitutional Court. See mainly SÓLYOM, L. BRUNNER G., CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT (2000), covering translations of the most important cases of the Court under its President Sólyom ( ). 18 On the Czech Constitutional Court cf. GEORG BRUNNER, MAHULENA HOFMANN, PAVEL HOLLÄNDER (EDS.), VERFASSUNGSGERICHTSBARKEIT IN DER TSCHECHISCHEN REPUBLIK : ANALYSEN UND SAMMLUNG AUSGEWÄHLTER ENTSCHEIDUNGEN DES TSCHECHISCHEN VERFASSUNGSGERICHTS (BÄNDE I.- X. DER AMTLICHEN SAMMLUNG), Nomos, Baden-Baden The best introduction of all four Central European constitutional courts is provided by RADOSLAV PROCHÁZKA, MISSION ACCOMPLISHED. ON FOUNDING CONSTITUTIONAL ADJUDICATION IN CENTRAL EUROPE. CEU Press, Budapest, New York Cf. Art. 5 of the Constitutional Tribunal Act, available at at (in English). 20 On staffing the Federal Constitutional Court cf. WILHELM KARL GECK, WAHL UND AMTSRECHT DER BUNDESVERFASSUNGSRICHTER (Baden-Baden 1986). 21 The data according to the Tribunal s Internet site, supra, note _ (visited 15 August 2005). 22 Leszek Lech Garlicki, The Experience of the Polish Constitutional Court, in CONSTITUTIONAL JUSTICE, EAST AND WEST. DEMOCRATIC LEGITIMACY AND CONSTITUTIONAL COURTS IN POSTCOMMUNIST EUROPE IN A COMPARATIVE PERSPECTIVE 265, 269 (Wojciech Sadurski ed. 2002).

7 academic and widely respected court, a considerable setback, on the other hand, is the qualified majority and resulting enormous difficulties in electing any candidate whatsoever. Facing impossibility to elect all the justices of the court, the number of justices was lowered to 11 in the middle 1990 s. Still, in summer 2005 there were only eight sitting justices out of required eleven. 23 A deadlock of the divided Hungarian political scene is very difficult to be overcome. 24 The Slovak model of appointment of constitutional justices seems to be an inverse model to the American one here Parliament nominates twice as many candidates as the number of vacancies and President selects among them. 25 This model also tends to generate law professors at the expense of other law professions although considering a low status of legal academia during Czechoslovak really existing socialism it seems that both Slovakia and the Czech Republic face more difficulties in staffing their courts by competent academics. 26 In 2003, after the SCC had been restaffed, it had five law professors out of thirteen justices; among them were also most respected Slovak academics. 27 The Czech Constitution follows the American model of staffing the constitutional court. The Constitution gave President the power of nomination and the Senate the power of confirmation of 15 constitutional justices. 28 The term is ten years, and unlike most other European countries, is renewable. 29 The CCC appointed by President Havel tended to be composed of one third of legal academics, one third of practitioners and one third of former ordinary judges. New President Klaus during a long process of creation of the new court after terms of most justices had expired in 2003 substantially changed the 23 See the website of the Hungarian Constitutional Court: (an English version, visited on July 1, 2005, indicated only eight justices). 24 In September 2006, after two new justices were elected, there was still one vacancy on the bench. See the website of the Hungarian Constitutional Court: (in September 2006, after election of two new justices in autumn 2005, the number of justices is 10, see ibid., visited 15 March 2006). 25 See the SLOVAK CONST., Art In this sense, an authoritarian Slovak Prime Minister Vladimír Mečiar was right when he remarked that it is impossible to deny that there were not even 10 experts on constitutional law in Slovakia in time when the required number of justices was 10. Quoted by HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL JUSTICE IN POSTCOMMUNIST EUROPE 201 (2000). 27 I have in mind especially Professors A. Bröstl and E. Barány. The data according to the website of the SCC 28 See CZECH CONST. art On this critically Zdeněk Kühn, Jan Kysela, Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic 2 EUCONST 183 (2006).

8 bench. In December 2005 the Court was finally complete. Of fifteen constitutional justices, three were remaining President Havel s appointees who occupied vacancies between 2000 and Other three former Havel s justices were reappointed to the bench by President Klaus. If the CCC is taken as a whole, three justices including a new Chief Justice are former top politicians, other three law professors, four former ordinary judges, two attorneys and one is a former Czech representative at the European Commission of Human Rights. 30 The role and activity of Central European constitutional courts substantially differs. Both the HCC and the PCC exercise mostly abstract constitutional review of acts of parliaments. That is why in Hungary 31 and Poland 32 one might find only very indirect interactions between constitutional and ordinary judiciary; a basic mode of interaction is a judicial referral of law s constitutionality, a constitutional complaint proper does not exist. In contrast, following the German model, 33 the CCC exercises the judicial review both of constitutionality of laws and constitutionality of individual decisions, including judgments of ordinary law courts. 34 Slovakia, which stood originally somewhere in the middle 35 moved after 2001 closer to the German and Czech model. 4. The Political Weight of Central European Constitutional Courts Prior to the Enlargement The tendency to use constitutional adjudication as means of prolonging or even revising the political battle lost in parliament found its fast way into postcommunist political systems. Constitutional review in some postcommunist systems is even more 30 The rest is difficult to specify. In more detail cf. the article quoted in the preceding note. 31 Cf., e.g. Art. 1 of the Act No. XXXII of 1989 on the Constitutional Court of Hungary. 32 POL. CONST. art. 79 1, art cl See art. 13 8a of the law on Federal Constitutional Court; GRUNDGESETZ [GG] [Constitution] art cl. 4a and 4b of the Basic Law). Similarly Spain (the organic law on the Constitutional Tribunal, art. 43 ff.). In postcommunist Europe, this model is much less popular. Besides the Czech Republic (and since 2002 Slovakia), it seems to exist only in Slovenia (Art. 21 para 1 (6) of the Act on the Constitutional Court of the Republic of Slovenia, URADNI LIST [Official Gazette] No. 15/1994, available in English at the website of the Slovenian Constitutional Court visited on May 16, 2003) and Croatia (Art. 127 para. 1 of the Constitution of Croatia, Art. 62 ff. of the Constitutional act on the Constitutional Court of the Republic of Croatia, NARODNE NOVINE [Official Gazette] n. 49/02 of May 3, 2002, available at visited on May 16, 2003). 34 Procházka noted that the Czech Constitutional Court, because of its constitutional complaints and the review of judicial decisions, is the most judicial tribunal in Central Europe. PROCHÁZKA, supra, note _, at Id., at 189.

9 open to parliamentarians because, like in most postcommunist countries there is no time limit to refer the law to the court by members of parliament. For instance, in the Czech Republic, the number of parliamentary referrals between the fall 1993 and the end of 2004 was close to ten annually (91 referrals in total during first 12 years). Of these laws challenged, every third law was either totally or partially annulled. 36 Of the major decisions of the CCC, one should mention a substantial expansion in the process of restitution (return of property nationalized by the communists) or approving the Czech way of dealing with the communist past (lustration). The fact that the CCC can intensely influence political competition itself has been proved by numerous decisions on financing political parties. Moreover, the CCC disabled the reform of elections to the lower house of Parliament, claiming that the law went beyond the limits of constitutionally required proportional system. Some postcommunist systems provide a very diverse body of institutions which might challenge the law before the court. The Polish constitution provides the catalogue of institutions eligible to challenge the law before the PCT which is the most extensive one in Europe. In practice, apart from parliamentarians, the Ombudsman and local selfgovernments, unions, and trade organizations are also very active in activating the PCT. 37 Perhaps the most famous Polish decision is outlawing abortion by judicial fiat without any textual constitutional basis whatsoever (1997). The most open system of constitutional review is undoubtedly the Hungarian system. Everyone has been vested the right to challenge the law disregarding whether or not the law applies to him or her in any way (actio popularis). 38 This unusual regulation invites over one thousand petitions to annul the law annually, referred mostly by private individuals and non-governmental organisations. 39 Because of this widely open gate, the 36 Based on the data provided by CCC in July I would like to thank to Hynek Baňouch for providing me with this data. 37 Available at (Polish and English version, visited on July 17, 2005). 38 See LÁSZLÓ SÓLYOM, GEORG BRUNNER, CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT, Ann Arbor: The University of Michigan Press On the other hand, however, the right to individual constitutional complaint does not exist. That is why this system is criticized as one sided, too open to challenge any general law, too closed to challenge constitutionality of decisions of public authorities (see Interview with László Sólyom, E. EUR. CONST. REV., Winter 1997, at 72). A prominent Hungarian scholar criticized its Court s practice oriented only on abstract review without any touch with real-life disputes. This made the Court s opinion more sterile, self-oriented, and not responsive to external challenge. András Sajó, Reading the Invisible Constitution: Judicial Review in Hungary, 15 OXFORD J. LEGAL STUD. 253, 266 (1995). 39 Available at (Hungarian and English version).

10 HCC considered almost all important societal issues, including death penalty (annulled), abortion (ordered more strict conditions) or the punishment of communist crimes (modified). The HCC struck down also welfare reform which caused a widespread doctrinal criticism for overt and uncontrolled activism and the fact that the HCC in fact made communist welfare system irreversible. 40 The HCC newly elected in the late 1990 s seems to be more self-restrained in comparison with its overactive first decade. 41 Taking all these data into account, the number of parliamentary referrals is similar to most litigious Western European constitutional courts. 42 What makes the difference between the established democracies and several young postcommunist democracies, however, is the possibility of other persons than politicians to refer the law to the court. Including also these instances of constitutional review, the constitutional review workload of the HCC is two hundred times higher than the one of the standard Western European constitutional court. The political impact of such a flood of constitutional referrals is obvious. Postcommunist political elites are generally reluctant to openly criticize their constitutional courts (perhaps with the notable exception of the Czech President V. Klaus). This might be explained by the notion widely held there that critique of the court would be politically incorrect. Yet another explanation would be that while straight criticism is virtually missing, out of sight disregard to judicial rulings is not uncommon. In postcommunist Europe, it is sometimes the case that constitutional rulings are disrespected by the public authorities and politicians. For instance, the legislature enacts the law although that law is unconstitutional considering previous constitutional decisions. While this is almost unknown in Western countries 43 where some scholars even criticize the excess of deference by members of Parliament toward the court 44, frequent 40 See András Sajó, Socialist Welfare Schemes and Constitutional Adjudication in Hungary, in THE RULE OF LAW IN CENTRAL EUROPE 160 (Jiří Přibáň, James Young eds., 1999). 41 Kim Lane Scheppele, The New Hungarian Constitutional Court, E. EUR. CONST. REV. Fall 1999, available at 42 I have in mind especially the French Constitutional Council. After the first important decade of the socialist government of the 1980 s and is aftermath [ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE. THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE 140 ff. (1992)], the judicialization of politics intensified during the late 1990 s and the early 2000 s, with the record of 25 referrals in 2003 (available at the Council s website visited July 17, 2005). 43 STONE SWEET, supra, note _, 84, Christine Landfried, Germany, in: THE GLOBAL EXPANSION OF JUDICIAL POWER 307, 314 (C. Neal Tate, Torbjörn Vallinder eds., 1995).

11 disregard of constitutional rulings happens in the Czech Republic, Poland and other postcommunist countries with still immature political culture The Case Study: the European Arrest Warrant in Germany and Poland and the Extradition of Nationals 6.1 Overture In our analysis how the constitutional courts of Central Europe fit within the complex scheme of EU law, an interesting comparison might be provided by several decisions relating to the implementation of the European Arrest Warrant Framework Decision (EAWFD). 46 In principle, I will concentrate on one specific aspect of this complex law, which is the extradition of nationals. 47 The prohibition of extradition of nationals is the rule which was developed during the rise of the modern nation state on the European Continent throughout the 18th and 19th century. In contrast, the prohibition of extradition of nationals has never been firmly established in the Anglo-Saxon world Due to growing judicialization at transnational level, national governments find themselves more constrained to obey rulings of their own constitutional courts. For instance, the European Court of Human Rights found that in the case of Polish rent control several constitutional rulings made by the PCT were disobeyed by the Polish legislature. The European Court found rent control as practiced in Poland contrary to the right to property, adjudicated against the Polish state and criticized Poland for non-compliance with the decisions of the PCT [Hutten-Czapska v. Poland, application No /97, the judgment of the Grand Chamber of 19 June 2006, paragraph 208: The Grand Chamber, in its assessment of the applicant s situation in the period under consideration, shares the opinion expressed by the Constitutional Court, to which the Chamber subscribed, that the provisions of the 2001 Act as applicable at the relevant time unduly restricted her property rights and placed a disproportionate burden on her, which cannot be justified in terms of the legitimate aim pursued by the authorities in implementing the relevant remedial housing legislation (referring to the previous decision of the ECHR s Chamber in the same case on 22 February 2005]. Almost identical disrespect existed in the Czech Republic where the government finally started to prepare a new law after realizing the possible effects of the Hutten-Czapska verdict. 46 See the Council Framework Decision on the European Arrest Warrant (and surrender procedures between member states), 2002/584/JHA, OJ L190/1 of Cf. on this framework decision, inter alia, HANDBOOK ON THE EUROPEAN ARREST WARRANT (Rob Blekxtoon & Wouter van Ballegooij Eds., 2004); Alegre & Leaf, Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study the European Arrest Warrant, 10 European Law Journal 200 (2004); Wouters & Naerts, Of arrest warrants, terrorist offences and extradition deals: an appraisal of the EU s main criminal law measures against terrorism after 11 September, 41 Common Market Law Review 909 (2004). 47 For a superb analysis of this concept in general see Michael Plachta, (Non-)Extradition Of Nationals: A Neverending Story? 13 EMORY INT'L L. REV. 77 (1999). 48 HENRY CHARTRES BIRON & KENNETH E. CHALMERS, THE LAW AND PRACTICE OF EXTRADITION 13 (1903) ( it may be observed that the most liberal governments of the world those of this country [the United Kingdom] and the United States of America are now sometimes willing to surrender their own subjects, even in some cases where they do not meet with reciprocal treatment. These facts may be fairly taken as

12 In fact, only in the 19th century growing mobility of Europeans presented extradition as a practical issue: the pre-18th century law hardly ever dealt with the issue. The prohibition to extradite nationals was originally understood to maintain the jurisdiction of the state over its subjects rather than to protect rights of citizens. 49 Mutual distrust of the nation states in their exercise of justice played a substantive role in strengthening the rule in the 19th century. Writing more than two hundred years ago, marquis Beccaria refused to decide the issue whether or not to extradite nationals until tyranny would disappear from Europe and all European states acknowledge the universal empire of reason : 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 the abolition of arbitrary power of opinion, shall afford security to virtue and innocence when oppressed; and until tyranny shall be confined to the plains of Asia, and Europe acknowledge the universal empire of reason by which the interests of sovereigns and subjects are best united. 50 Similarly, an American scholar writing at the onset of World War II remained optimistic that the prohibition of extradition of nationals cannot remain in the books in the future: We may confidently look forward to the breakdown of divisions of nationality and perhaps ultimately of race. The breakdown of the rule of non-extradition of nationals is at once a part of the evolutionary process and a symbol of the growth of world unity. 51 an index of the general feeling in this country which is in favour of the surrender of all fugitive offenders of whose guilt of a crime punishable in this country a prima facie has been made out, a feeling which is due to the consciousness that such a policy is in accord with the interest of this country, and it is reasonable to suppose that this view of extradition is appealing to the other civilized nations of the world, and increasingly so as the general balance of convenience is recognised to be in favour of reducing obstacles to extradition. ). This book is also cited by the Czech Constitutional Court in its EAW case (see paragraph 75, noting that British lawyers have traditionally preferred this approach to that of the European continental countries ). Cf. a 1968 declaration by the Chairman of the English House of Commons: We don't feel outraged honour at the thought of delivering an Englishman into the hands of foreign judges. He is first of all a criminal and only after that an Englishman. (quoted by Plachta, supra, note _, at 94). 49 Plachta, supra, note _, at 82: The modern practice of non-extradition of nationals dates back to medieval times, and it is rooted in the relationship between the feudal ruler and his subjects. While the former owed protection to his "subditos" for their allegiance, work, and contribution to his wealth and power, the latter were entitled to the "ius de non evocando," the right not to be withdrawn from the jurisdiction of their local courts. Cf. also a very interesting analysis ROBERT WALLACE RAFUSE, THE EXTRADITION OF NATIONALS (1939). For similar arguments made by the CCC see below, section _. 50 CAESAR BONESANA, MARQUIS BECCARIA, AN ESSAY ON CRIMES AND PUNISHMENT (Philadephia: Philip H. Nicklin 1819) (emphasis added). 51 RAFUSE, supra, note _, at 153.

13 The fact that it is not only the European Court of Justice 52 who claims that the mutual distrust of European nations is the matter of the past, the prohibition of extradition of nationals offers an interesting testing case on the positions of constitutional courts. In contrast with most other Central European constitutional courts, preparations for the modified role of the constitutional court after the Accession were generous in Poland. It seems that the PCT was the constitutional court far the best prepared for the Enlargement and new challenges brought to the Tribunal by European law and its doctrines. For instance, all major decisions of national constitutional courts on the relation between EU and national constitutional law have been translated in Polish and posted at the Tribunal s website. 53 Consequently, the first major constitutional decisions from new Central European Member States were decided by the PCT. On April 27, 2005 the PCT declared the implementation of the EAW unconstitutional in Poland so far as it allows the surrender of Polish nationals. 54 Poland implemented 55 the EAW despite art. 55 of the Polish Constitution which explicitly prohibits the extradition of Polish nationals ( Extradition of a Polish national is prohibited. ). The Tribunal acted based on reference of the District Court in Danzig which handled the case of surrender of a Polish national to the Netherlands. In an interesting exercise of inter-judicial dialogue, the district court openly doubted soundness of the Euro-friendly construction of national constitutional law. It would be risky, in the opinion of the district court, if this sort of construction should limit basic rights. 56 One can easily see that the district court disputed the potential range of the earlier doctrines 52 Joined cases C-187/01 and C-385/01, Criminal proceedings against Hüseyin Gözütok (C-187/01) and Klaus Brügge (C-385/01), ECR [2003] I-1345, paragraph 33: the Member States have mutual trust in their criminal justice systems and each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied. 53 Sądy konstytucyjne państw Unii Europejskiej a prawo wspólnotowe [Constitutional courts of the European Union Member States and Community Law], available at (visited on February 14, 2005). 54 The case P 1/05, quoted according to (not yet) published Polish text (unless specifically referred to the English summary available at the Tribunal s website). Cf. the first case notes on the case in Poland, e.g. by Władysław Czapliński, Piotr Hofmański, Michał Płachta and Roman Wieruszewski, all in PAŃSTWO I PRAWO 9/2005, in English Adam Łazowski, Constitutional Tribunal on the Surrender of Polish Citizens Under the European Arrest Warrant. Decision of 27 April EUCONST 569 (2005) or an excellent analysis of both the German and Polish decision by Jan Komárek, European Constitutionalism and the European Arrest Warrant: Contrapunctual Principles in Disharmony, JEAN MONNET WORKING PAPER 10/ See the amendment to the Criminal Procedure Code of May 18, 2004 (Dz.U. [Official Gazette 2004, n. 69, item 626). 56 See part 1.4 of the decision of April 27, 2005.

14 made by the PCT. 57 Expert opinions on the issue of constitutionality were divided, 58 the constitutional text was clear and allowed no exception to the strict prohibition of the extradition of nationals. The German FCC declared the German act on the EAW unconstitutional three months later, on July 18, The GFCC was deciding based on the constitutional complaint of a German and Syrian citizen Mamoun Darkazanli who was surrendered to Spanish authorities which wanted Darkazanli for his alleged participation on the Al- Kaida terror network in Europe. The complainant argued by the problem of abolition of dual criminality principle, by the fact that he did not commit any crime on the Spanish territory, and by the fact that the decision on surrender cannot be appealed. Unlike Poland, Germany amended its constitution which now expressly provides for exceptions from the originally unexceptional prohibition of extradition of nationals. 60 Finally, on 3 May 2006 the Czech CC refused the proposal filed by the opposition parliamentarians to annul the Czech implementation of the EAW. The parliamentarians of the conservative Civic Democratic Party (ODS) argued that the possibility to surrender Czech citizens abroad under the EAW is in conflict with Art. 14 par. 4 of the Charter of Fundamental Rights, according to which no citizen may be forced to leave his homeland. The prohibition laid down in this article of the Charter is clear and unconditional, in the petitioners view. Moreover, facing poor definitions in the lists of offenses for which double criminality principle is not required, the petitioners argued by the violation of the principle No crime without the law See note _ infra and the accompanying text. 58 Cf. in English the report by Agnieszka Grzelak at XXI FIDE Congress, Dublin, June 2004, part C, point 3, available at (claiming that the majority of Polish scholarship did not consider it unconstitutional). 59 See the German Federal Constitutional Court, 2 BvR 2236/04 of July 18, 2005, paras (1-201), available at 2bvr html, also published in 58 NJW [NEUE JURISTISCHE WOCHENSCHRIFT] 2289 (2005). Cf. in German Michael Böhm, Das Europäische Haftbefehlsgesetz und seine rechtsstaatlichen Mängel, 58 NJW 2588 (2005); Joachim Vogel, Europäischer Haftbefehl und deutsches Verfassungsrecht, 60 JURISTEN ZEITUNG 801 (2005); in English e.g. Christian Tomuschat, Inconsistencies The German Federal Constitutional Court on the European Arrest Warrant, 2 EUCONST 209 (2006) or Simone Mölders, Case Note - The European Arrest Warrant in the German Federal Constitutional Court, 7 GERMAN L. J. No. 1 (1 January 2006), 60 See GG, art See the Czech Constitutional Court s judgment of 3 May 2006, published in Czech as 434/2006 Sb. [Official Gazette], the full English translation (used also in this paper) is available at the Court s website at

15 6.2 Analysis of the three decisions Polish, German and Czech Formalisms Compared The unanimous decision of the PCT might be considered both remarkably formalistic and EU-friendly. The PCT emphasized that its task is to review constitutionality of all laws, including those which implement EU law into national law. 62 At the same time, it highlighted (while referring to the ECJ case law) that the Eurofriendly construction of national law has its limits and cannot worsen the position of an individual. 63 Euro-friendly position of the Polish justices is seen throughout the judgment. The Tribunal repeated several times that the EAW is the important measure which is considering the circumstances of European Integration fully justified 64 and deserves the maximum priority by the Polish legislature. 65 On the other hand, although it is possible to notice the general trend of the decline of the role which state citizenship has in determining the legal status of an individual, it is not up to the justices to change the constitution by creative dynamic interpretation, especially facing a strict and unconditional prohibition by art of the Polish Constitution. 66 The PCT reminded us that during drafting the Constitution the opinion that the extradition of nationals is the most extreme limitation of state sovereignty 67 effectively caused unconditional character of the constitutional ban on extradition. This unconditional nature of the prohibition in effect meant that doctrinal arguments calling for balancing art. 55 against other constitutional provisions were refused. 68 Because one argument to uphold the law was the emphasis on the difference between extradition and surrender (only the former is prohibited by the Constitution, whereas criminal law talks about surrender), the PCT struggled with the concept of extradition and surrender. The Tribunal did not accept textual formalism and replaced it by its own systemic formalism when it summarized the basic differences between both 62 See part 2.4 of the decision quoted _ supra. 63 Id., Id., part Id., part Id., Id., Id., 4.1, 4.2.

16 concepts. Finally, the PCT reasoned that surrender is not qualitatively different from extradition, and if it differs, it is rather more severe from of extradition. 69 That is why the PCT reasoned a minori ad maius 70 (the logical argument which is based on the presumption that if something is true about a logically smaller phenomenon, then it is true about a logically greater phenomenon as well ). Thus on the one hand, the Eurofriendly court demarcated limits of judicial creativity, and, on the other hand, called (or even urged) the legislature to intervene and amend the Constitution. When one compares both the German and Polish decisions, the perspective in which they fundamentally differ is the final verdict and temporal consequences of the decision. First, the Polish CT (being bound by the ordinary court s referral) declared unconstitutional only the provision of the Criminal Procedure Code which allows the extradition of Polish nationals. Moreover, and even more importantly, the PCT took pain to justify that despite the extradition of nationals is unconstitutional, it must be nevertheless applied until the Constitution is amended. The PCT gave Parliament 18 months for this amendment; if no amendment is made within this period, the decision will take effect and no extradition of nationals would be allowed. The PCT argued by the constitutional provision which declares that the Poland obeys to international law 71 and also by the Polish obligations to the EU. The PCT indebted to the issue a substantial portion of its opinion 72 which might be also explained by earlier frequent clashes between the ordinary judiciary and the constitutional judiciary. 73 In contrast, the GFCC forgot all its judicial creativity and annulled the law on the implementation of the EAW 74 in its entirety, despite the fact that in most parts constitutionality of law was unquestioned. 75 In reality, there were only limited problems with the German act: the principal problems for the German justices were 1) the fact that the German act did not implement Article 4 para. 7 of the Framework Decision (dealing 69 Id., 3.2, 3.3, 3.5, Id., POL. CONST. art See the part 5 of the decision quoted _ supra. 73 Anna Wyrozumska, Direct Application of the Polish Constitution and International Treaties to Private Conduct, 25 POLISH Y. B. INT L L. 5 (2001). 74 Das Gesetz zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahren zwischen den Mitgliedstaaten der Europäischen Union (Europäisches Haftbefehlsgesetz EuHbG) vom 21. Juli 2004 (Bundesgesetzblatt I Seite 1748). 75 Critically on this the dissenting opinion of Justice Lübbe-Wolff, part 6), Internet version 181, NJW 2005, at 2301.

17 with the optional grounds for refusal to surrender persons suspected of offences committed on the German soil), 2) the fact that the German act did not provide for a sufficient judicial review, 3) some problems with retroactive effects for the crimes committed on German soil. Thus, according to a dissenting Justice, by annulling the law which by and large might have been applied without any constitutional problem, the Senate [of the GFCC] forces the Federal Republic of Germany to violate Union law which could have been avoided without constitutional violation. 76 In this comparison it seems that while, on the one hand, for the Polish constitution international and European law represents a compelling value which, for some time, allows even the violation of the constitutional rights, on the other hand the German constitution does not reflect German international obligations to any substantial degree. The real explanation, however, is rather to analyze what the constitutional courts wanted to show to the ECJ and the Union s authorities. On the one hand, the PCT, a newcomer in the EU, making its first fundamental decision, disputing in effect constitutionality of the European act, did its best not to look in a bad light in the European discourse. On the other hand, the GFCC, a well-known defender of national basic rights against European encroachments, wanted to send an important signal to the Brussels and Luxembourg. Unlike the PCT, the GFCC did not question constitutionality of the extradition (surrender) of nationals itself but only some features of its national implementation. Thus it was able to show to the EU that the GFCC is here, defending basic constitutional rights. The best way was the dramatic effect of annulling the whole law on the implementation of the EAWFD. The actual damage, however, would be small because enacting a new law would not present a big problem for the legislature. Quite the contrary, the damage made by the Euro-friendly PCT might be considerable: the search for the supermajority to amend the constitution would be very difficult in the Polish fragmented political scene. When reading the PCT s opinion, justices pro-european stances are very visible. In fact, the conflict between EU law and the constitution seemingly presented an easy case, solvable by systemic formalism. The PCT did not try to make this case hard by 76 Id., Internet version 182, NJW 2005, at 2301.