APPLICATION OF THE EUROPEAN ARREST WARRANT TO POLISH CITIZENS

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1 Judgment of 27 April 2005, HTU 1/05UTH Summary protected by copyright ALICATION OF THE EUROEAN ARREST WARRANT TO OLISH CITIZENS Type of proceedings: HTUQuestion of law referred by a courtuth Initiator: Regional Court for Gdańsk Composition of e Tribunal: lenary session Dissenting opinions: 0 Legal provisions under review Basis of review Admissibility of surrendering a olish citizen to anoer Member State of e European Union on e basis of e European Arrest Warrant [Criminal rocedure Code 1997: Article 607t 1 (supplemented in 2004)] rohibition on extraditing olish citizens [Constitution: Article 55(1)] On 13 June 2002, e Council of e European Union issued a Framework Decision on e European arrest warrant and e surrender procedures between Member States (2002/584/JHA). The aforementioned decision constitutes a source of secondary European Union law wiin e framework of e so-called Third illar of e European Union (cf. Article 34 [ex-article K.6] (2) point b of e Treaty on e European Union). The Framework Decision of 13 June 2002 represents a reaction of e EU Member States to e undesirable side-effects of e free movement of persons between ose States, such as requires a new form of cooperation in counteracting more serious criminal offences. According to e definition contained in Article 1(1) of e Framework Decision of 13 June 2002, e EAW is a judicial decision issued by a Member State wi a view to e arrest and surrender by anoer Member State of a requested person, for e purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. The obligation to execute a European Arrest Warrant (EAW) also exists, in principle, when e person to whom e EAW relates is a citizen of a State to whom e warrant was directed. Such a State is entitled to refuse to surrender one of its citizens, against whom an EAW has been issued, only where e warrant was issued for e purpose of executing a previously imposed custodial sentence or detention order and where at State undertakes to execute e custodial sentence or detention order in accordance wi its domestic law (Article 4 point 6 of e Framework Decision). Where e EAW was issued for e purpose of prosecuting an offence which has not yet been adjudged, e Member State obliged to execute e warrant may subject e surrendering of its citizen to e condition at such

2 2 person is returned to at Member State in order to serve e custodial sentence or detention order ere (Article 5 point 3 of e Framework Decision). Furermore, e Framework Decision departs from e principle of so-called double criminalisation a feature of e classical institution of extradition wiin inter-state relations. This principle makes extradition conditional upon e extraditing State recognising as a criminal offence e acts done by e convicted or accused person. However, in e case of many acts enumerated in e Framework Decision of 13 June 2002, it is sufficient, in order to require a person s surrender on e basis of an EAW, at e act must be recognised as an offence in e State where e warrant was issued. Furermore, e political nature of an offence does not constitute an obstacle to executing an EAW. The surrender procedure on e basis of an EAW is simpler an in e case of classical extradition. This is demonstrated, for example, by e fact at EAW s are passed directly between e appropriate judicial organs wiout e participation of a diplomatic channel or oer intermediaries. When oland acceded to e European Union on 1 st May 2004, it accepted e obligation to implement in full e Framework Decision of 13 June For e purpose of executing is obligation, it was primarily necessary to transpose e content of e Framework Decision into olish legislation (framework decisions issued wiin e EU s Third illar, just as Directives issued wiin e First illar, are not directly applicable). A divergence of opinions arose wiin judicial circles regarding oland s ability to execute an EAW against its own citizens, given e prohibition on extraditing olish citizens contained in Article 55(1) of e 1997 Constitution. Alongside views expressing e opinion at an appropriate amendment of e Constitution was required, oer commentators suggested at e surrendering of a citizen on e basis of an EAW is a concept distinct from e notion of extradition wiin international law, which is mirrored (in ese commentators opinions) in Article 55(1) of e Constitution. The Marshal of e Sejm and e rosecutor General referred to e latter views in proceedings before e Constitutional Tribunal. The olish legislator decided to transpose e Framework Decision of 13 June 2002 by way of amendment to e Criminal rocedure Code 1997, wiout any accompanying alteration of e Constitution. The aforementioned amendment took place on e basis of a 2004 Act amending several criminal statutes. Two new chapters were introduced into e Criminal rocedure Code (CC): Chapter 65a, regulating situations when a olish court issues an EAW, and Chapter 65b, regulating situations when an EAW issued by a court of anoer EU Member State concerns a person present in oland. Concomitantly, e legislator created a terminological distinction between extradition and e surrendering of a person on e basis of an EAW: in e amended Article 602 of e CC, located in Chapter 65 (entitled Extradition and transport of prosecuted or convicted persons, or e delivery of material objects upon e request of foreign states ), extradition is defined in a manner so as to ex-

3 May 3 clude e surrendering of a person on e basis of e EAW, pursuant to e procedure regulated in Chapter 65b. No provision in e Code expressly states at e surrendering of a person from olish territory, on e basis of an EAW, may also apply to a olish citizen. Such a conclusion stems, however, from certain regulations contained in Chapter 65b, as interpreted in conjunction wi e Framework Decision of 13 June Namely, Article 607p of e CC, specifying e compulsory prerequisites for refusing to execute an EAW, fails to envisage at e possession of olish citizenship by e person to whom e warrant relates could constitute a basis for refusal to execute such a warrant (in comparison, Article 604 of e CC, concerning extradition, states at extradition is not permissible where e person to whom e extradition relates is a olish citizen or enjoys e right of asylum in oland). Articles 607s and 607t successively institute certain restrictions for executing an EAW in respect of olish citizens and persons enjoying e right of asylum in oland, who are treated in e same way as olish citizens. These latter two articles of e Criminal rocedure Code differentiate e application of an EAW in respect of olish citizens on e basis of wheer an EAW was issued for e purpose of executing a previously imposed custodial sentence (or detention order), or raer for e purpose of prosecuting e person for a criminal offence. Article 607s 1 governs e first situation and states at an EAW may not be executed against a olish citizen in e absence of eir consent to e surrender. In e absence of such consent, e carrying out of e penalty takes place in oland (Article 607s 3-5). Article 607t 1, challenged in e present case, concerns e second situation: Where a European arrest warrant has been issued for e purposes of prosecuting a person holding olish citizenship or enjoying e right of asylum in e Republic of oland, e surrender of such a person may only take place upon e condition at such person will be returned to e territory of e Republic of oland following e valid finalisation of proceedings in e State where e warrant was issued. In e present case, proceedings before e Constitutional Tribunal were initiated by e Regional Court for Gdańsk, which considered e public prosecutor s application concerning e issuance of a procedural decision on surrendering a olish citizen Maria D. on e basis of an EAW, for e purpose of conducting a criminal prosecution against her in e Kingdom of e Neerlands. The delay of loss of binding force of e unconstitutional provision, determined in part II of e ruling, runs from e date on which e judgment was announced in e Journal of Laws (is took place on ). It follows from e reasoning for e judgment at e legislator may avoid e effects of failing to adjust olish law to e requirements of e Framework Decision by way of an appropriate amendment of e Constitution and, subsequently, e re-introduction of e statutory norm found unconstitutional in e judgment summarised herein (cf. points 10 and below).

4 4 THE TRIBUNAL S RULING I Article 607t 1 of e Criminal rocedure Code, insofar as it permits e surrendering of a olish citizen to anoer Member State of e European Union on e basis of e European Arrest Warrant, does not conform to Article 55(1) of e Constitution. II The Tribunal ruled at e loss of binding force of e challenged provision shall be delayed for 18 mons following e day on which is judgment was published in e Journal of Laws. RINCIAL REASONS FOR THE RULING 1. Constitutional notions have an autonomous nature in relation to binding acts of lower rank. The meaning of terms contained in ordinary statutes may not determine e interpretation of constitutional provisions; oerwise e guarantees contained in ese provisions would lose any sense. On e contrary, it is constitutional norms at dictate e manner and direction of interpreting statutory provisions. The starting point for e interpretation of constitutional notions is e understanding of terms used in e text of e Constitution, shaped historically and defined wiin legal doctrine. 2. Traditionally, e terms extradition and surrendering were treated as synonymous wiin olish legal discourse. This was true as regards e Criminal rocedure Code of 1969 and 1997 (until its amendment of 18 March 2004). Accordingly, it should be assumed at, wiin e currently operative 1997 Constitution of e Republic of oland, e constitutional legislator identified extradition wi surrendering as legal institutions consisting in e transfer of a prosecuted person upon e request of a foreign State, for e purpose of conducting a criminal prosecution against em or executing a penalty previously imposed upon em. In using e term extradition in e 1997 Constitution and in vesting a constitutional rank to e prohibition on extraditing olish citizens, e constitutional legislator could not have taken into account provisions concerning e European Arrest Warrant, even when envisaging oland s future membership of e European Union. It was only e Council of e European Union Framework Decision of 13 June 2002 on e European arrest warrant and e surrender procedures between Member States (2002/584/JHA) at created e obligation for EU Member States to surrender eir own citizens prosecuted on e basis of e EAW. 3. Significant discrepancies between surrendering on e basis of e EAW and extradition on e basis of e Criminal rocedure Code, as amended in 2004, do not preclude e possibility at e former does not constitute extradition wiin e autonomous constitutional sense, as contained in Article 55(1) of e Constitution (cf. point 1 above). The Constitution fails to regulate ose aspects which would determine e differences between bo of ese institutions on e basis of e Code. This indicates at it would only be possible to consider e surrendering of a person prosecuted on e basis of an EAW as an institution distinct from extradition, as referred to in Article 55(1) of e Constitution, where e essence of each of ese institutions was different. Since e essence (core) of extradition lies in e transfer of a prosecuted, or sentenced, person for e purpose of conducting a criminal prosecution against em or executing a penalty previously imposed

5 5 upon em, e surrendering of a person prosecuted on e basis of an EAW for e purpose of conducting a criminal prosecution against em or executing an imposed custodial sentence or anoer measure consisting in e deprivation of liberty, on e territory of anoer Member State, must be viewed as a form of extradition wiin e meaning of Article 55(1) of e Constitution. 4. The prohibition on extradition contained in e aforementioned constitutional provision expresses a right for olish citizens to be held criminally accountable before a olish court. Surrendering a citizen to anoer EU Member State on e basis of an EAW would entirely preclude enjoyment of is right and, ipso facto, would amount to an infringement of e essence of is right, which is impermissible in light of Article 31(3) of e Constitution. It should, erefore, be recognised at e prohibition on extraditing olish citizens, as formulated in Article 55(1) of e Constitution, is absolute in nature and e personal right of citizens stemming erefrom may not be subject to any limitations. 5. When oland became a Member State of e European Union, olish citizens also became citizens of e European Union. This circumstance constitutes an argument justifying e overturning, by means of an appropriate amendment to Article 55(1) of e Constitution, of e prohibition on extraditing olish citizens to EU Member States. However, it does not constitute a sufficient prerequisite for concluding at such overturning has already occurred, by virtue of a dynamic interpretation of is provision. It is crucial at e Constitution links a certain set of individual rights and obligations (independent of e rights and obligations vested in everyone falling wiin e jurisdiction of e Republic of oland) wi e possession of olish citizenship. In consequence, e possession of olish citizenship must constitute a significant criterion when assessing an individual s legal status concerning bo e obligations of e State vis-à-vis e citizen (particularly, when ey are formulated as categorically as in Article 55(1) of e Constitution) and e obligations of e citizen vis-à-vis e State, coupled wi e former (cf. Articles 82 and 85 of e Constitution). Furermore, it should be noticed at e surrender procedure on e basis of an EAW is not so much a consequence of introducing e institution of citizenship of e Union but raer an answer to e right of EU Member States citizens to move freely and reside wiin e territory of anoer Member State, which preceded creation of e aforementioned institution. 6. The Code does not contain any norm stating expressis verbis at e transfer of a person prosecuted on e basis of an EAW from e territory of e Republic of oland shall also apply in respect of olish citizens. Such a norm should, however, be derived from Article 607t 1, read in conjunction wi Article 607p, of e CC, which does not include e prosecuted person s possession of olish citizenship as one of e enumerated prerequisites for obligatory refusal to execute an EAW. 7. Whilst e obligation to implement secondary European Union law, including framework decisions adopted wiin e Union s Third illar (cf. Article 32 of e Treaty on e European Union, as amended by e Amsterdam Treaty), has its basis in Article 9 of e Constitution of e Republic of oland, e fact at a domestic statute was enacted for e purpose of implementing secondary EU law does not per se guarantee e substantive conformity of is statute wi e norms of e Constitution. 8. The obligation to interpret domestic law in a manner sympaetic to EU law (so as to comply wi EU law) has its limits. In particular, it stems from e jurisprudence of e Court of Justice of e European Communities (ECJ) at EU secondary legislation may not independently (in e absence of appropriate amendments in domestic legislation)

6 6 worsen an individual s situation, especially as regards e sphere of criminal liability. It is beyond doubt at e surrender of a person prosecuted on e basis of an EAW, in order to conduct a criminal prosecution against em in respect of an act which, according to olish law, does not constitute a criminal offence, must worsen e situation of e suspect. 9. The basic function of e Constitutional Tribunal wiin e olish constitutional system is to review e conformity of normative acts wi e Constitution. The Tribunal is not relieved of is obligation where e allegation of non-conformity wi e Constitution concerns e scope of a statute implementing European Union law. 10. Given e content of Article 9 of e Constitution, and e obligations stemming from oland s membership of e European Union, an amendment of e currently operative law is inevitable, enabling a full and, concomitantly, constitutionally compatible implementation of e Framework Decision of 13 June In order to enable fulfilment of is task, an appropriate amendment of Article 55(1) of e Constitution may not be excluded so at is provision will envisage an exception to e prohibition on extraditing olish citizens, so as to permit eir surrender to oer Member States of e European Union on e basis of an EAW. 11. The possibility, envisaged in Article 190(3) of e Constitution, for a judgment of e Constitutional Tribunal to delay e loss of binding force of a provision found nonconforming to an act of higher rank, is not limited to cases of e abstract review of norms but may also be applied wiin e procedure for review of norms initiated by a question of law referred by a court or by a constitutional complaint. 12. Article 190 of e Constitution endows e Tribunal wi significant discretion in exercising e competence to delay e entry into force of its judgments bo as regards e grounds for such a period of delay and e specified duration of such delay (wiin e limits indicated by e discussed provision). However, is discretion does not signify arbitrariness. The aforementioned delay is equivalent to temporarily leaving in force e provision found nonconforming to an act positioned higher in e hierarchical system of e sources of law and, ipso facto, must always be applied as an exception, permitted by e constitutional legislator, from e principle of e hierarchical conformity of e legal system and e principle of e supremacy of e Constitution. Each decision concerning e application of such a delay should be based on a balancing of, on e one hand, values infringed in consequence of a prolonged application of unconstitutional provisions and, on e oer hand, values served by is delay. 13. The regulation contained in Article 31(3) of e Constitution, concerning e limitation of an individual s constitutional rights and freedoms, does not refer directly to e application of e delay envisaged in Article 190(3) of e Constitution. Accordingly, it is also permissible for e Tribunal to take advantage of e possibility to delay e entry into force of its judgments for reasons oer an e values enumerated in Article 31(3) of e Constitution (security and public order, protection of e natural environment, heal or public morals, or e freedoms and rights of oer persons), even where it is inevitable at is leads to e temporary maintenance in force of provisions limiting constitutional rights and freedoms. 14. Whilst a judgment of e Constitutional Tribunal delaying e loss of binding force of an unconstitutional provision does not immediately eliminate is provision from e legal system, it does create an obligation for e legislator to undertake actions aiming at rapid elimination of e defects of e legal regulation indicated by e Tribunal, insofar as pos-

7 7 sible before e lapse of e time period stipulated in e Tribunal s judgment. The loss of binding force of e provision following e lapse of is period may be conceived as a specific sanction for failure to fulfil e indicated obligation. 15. Taking into account e complexity and more stringent requirements (also regarding e relevant time periods) governing e procedure for amending e law, as well as e fact at oland s obligation to implement e Framework Decision of 13 June 2002 only exists from e date of oland s accession to e EU, i.e. from 1 st May 2004, e Tribunal decided (in part II of e ruling) at e loss of binding force of e unconstitutional provision shall be delayed for 18 mons, i.e. for e maximum period of delay, as envisaged in Article 190(3) of e Constitution. 16. If, as a consequence of e present judgment, an amendment of e Constitution is introduced, it will be necessary, in order to ensure e compatibility of domestic law wi EU law, to re-introduce legal provisions concerning e EAW which were found unconstitutional on e grounds of e hierto constitutional provision. 17. The institution of e EAW has crucial significance for e functioning of e administration of justice and, primarily as a form of cooperation between Member States assisting in e fight against crime for improving security. Accordingly, e olish legislator should give e highest priority to ensuring its continued functioning. The absence of appropriate legislative actions undertaken wiin e time period specified in part II of e judgment summarised herein will not only amount to an infringement of e constitutional obligation for oland to observe binding international law but could also lead to serious consequences on e basis of European Union law. 18. The Constitution does not envisage any exceptions from e principle of e universally binding force of Constitutional Tribunal judgments, as expressed in Article 190(1) of e Constitution. In particular, e Tribunal s judgments are binding upon all courts. 19. The delay of e loss of binding force of Article 607t 1 of e CC has e effect at, during e period of 18 mons following publication of e present judgment, is provision should be applied by organs administering justice, provided at e legislator does not earlier quash or amend is provision. Whilst is provision remains in force, olish courts may not refuse to apply it for e reason at it fails to conform to Article 55(1) of e Constitution. 20. In light of e fact at e Constitutional Tribunal is bound by e limits of e referred question of law (Article 66 of e Constitutional Tribunal Act), whose scope is, in turn, determined by e substance of e case before e court referring e question (Article 193 of e Constitution), e issue raised in various writings as to wheer provisions permitting e surrender, on e basis of an EAW, of a person suspected of committing an offence for political reasons, wiout e use of violence, conforms to Article 55(2) of e Constitution, may not be adjudicated on in e present case.

8 8 Constitution rovisions of e olish Constitution, e Constitutional Tribunal Act and e Treaty on e European Union Art.9. The Republic of oland shall respect international law binding upon it. Art. 31. [ ] 3. Any limitation upon e exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for e protection of its security or public order, or to protect e natural environment, heal or public morals, or e freedoms and rights of oer persons. Such limitations shall not violate e essence of freedoms and rights. Art The extradition of a olish citizen shall be forbidden. 2. The extradition of a person suspected of e commission of a crime for political reasons but wiout e use of force shall be forbidden. 3. The courts shall adjudicate on e admissibility of extradition. Art Judgments of e Constitutional Tribunal shall be of universally binding application and shall be final. [ ] 3. A judgment of e Constitutional Tribunal shall take effect from e day of its publication, however, e Constitutional Tribunal may specify anoer date for e end of e binding force of a normative act. Such time period may not exceed 18 mons in relation to a statute or 12 mons in relation to any oer normative act. Where a judgment has financial consequences not provided for in e Budget, e Constitutional Tribunal shall specify date for e end of e binding force of e normative act concerned, after seeking e opinion of e Council of Ministers. Art Any court may refer a question of law to e Constitutional Tribunal as to e conformity of a normative act to e Constitution, ratified international agreements or statute, if e answer to such question of law will determine an issue currently before such court. CT Act Art. 66. The Tribunal shall, while adjudicating, be bound by e limits of e application, question of law or complaint. EU Treaty Art. 34. [ ] 2. The Council shall take measures and promote cooperation, using e appropriate form and procedures as set out in is title, contributing to e pursuit of e objectives of e Union. To at end, acting unanimously on e initiative of any Member State or of e Commission, e Council may: [ ] b) adopt framework decisions for e purpose of approximation of e laws and regulations of e Member States. Framework decisions shall be binding upon e Member States as to e result to be achieved but shall leave to e national auorities e choice of form and meods. They shall not entail direct effect; [ ] Should you have any questions or comments, you may write to us: summaries@trybunal.gov.pl