Defendants' Complaints against Police Work in European Arrest Warrant Proceedings

1. Defendants' Complaints against Police Work in European Arrest Warrant Proceedings Dr. Željko Karas Police College, Zagreb (Croatia)

2. 1. The European Arrest Warrant (EAW) • Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States • EAW - a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order • Member States shall execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision

3. a warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months • list of 32 offences if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years, shall ‘without verification of the double criminality of the act’ give rise to surrender • abolishes, in principle, the traditional rule of dual criminality, which is a logical consequence of its underlying principle of mutual recognition • for offences not listed in Article 2(2) the executing State may still require dual criminality (Art. 2(4)) and it may also do so for the listed offences to the extent that they are not punishable in the issuing Member State by a deprivation of liberty for three years or more • a core feature is that the surrender process is almost entirely judicial in nature

4. the first elaboration of the mutual recognition principle • a genuine paradigm shift in legal cooperation between Member States • the EAW is based on the principle (subject to limitations and exceptions) that Member Statesautomatically recognize each other’s judicial decisions ordering the arrest of a person

5. 2. Croatia and the EU • The EU enlargement 2013. – Croatia - 28th EU member • implementation in Croatia - into force 1 July 2013 • Act on Judicial Cooperation in Criminal Matters with EU Members • changes of Constitution in 2010 • surrendering own citizens to other state

6. 3. Aim of the Research • the aim of this research is to identify how police investigation was treated during the first years of enforcing EAW in Croatia • in domestic procedures, a police work is very often directed by defendants • this part of the research is based on the sample made of decisions of the Supreme Court of Croatia delivered in the period 2013–2016. (N=121) • the sample includes all available final decisions regarding complaints against decisions of firstinstance courts on the execution of the EAW • the research was focused on defendants’ allegations that the police work and crime investigation hadquestionable results that are obstacles for surrendering

7. 4. Results • the results of the research show that only in few cases the remarks concerned alleged misconduct of foreign police, or the quality of evidence collected by a police • the current analysis indicates that police work hasn’t been prevailing ground for complaints, and itdid not have any significant impact on performing the EAW • determining identity of foreign perpetrator, in absence of appropriate evidence is showed as a main difficulty in police work.

8. 4.1. STATES THAT HAD ISSUED ORDER • Germany 36 • Slovenia 36 • Austria 20 • Italy 9 • Other 20

9. 4.2. TYPE OF CRIME • property crime43 • murders 2 • bodily harm 7 • traffic crimes 8 • narcotics 6 • other 55

10. 4.3. PURPOSE OF ORDER • surrendering 67 • execution of penalty 54

11. 4.4. QUESTIONABLE POLICE WORK • only in 6 cases • constitutes 8% of surrenders • claims on mistaken identity, stolen passport, lack of evidence, insufficient investigation • most of them unfounded • only 1 case - court deleyed the order and asked further information

12. 4.5. Case Study • perpetrator found in Italy, drivinga car with German plates • driving license from Croatia, without any other documents • later discovered that person's driving licence has never been issued in Croatia • serial number of that licence belongs to other licence • photo in license was not similar to searched person • Otherperson M. was under secret surveillance in Italy 2002-2004 • used false license earlier, police not having his photo or other details Kz-eun 5/13-4

13. 5. CONCLUSION • the research results indicate that crime investigations conducted by foreign police were well performed and therefore they did not present special issue in proceedingsjudicial stages of proceedings assure that that EAW is properly grounded, and that the main difficulties may rise in some other aspects of proceedings • in most of analysed cases, defendants based their complaints on procedural rules, such as double jeopardy, limitation, as well as on some other aspects of the procedure • the research results concern primarily the Croatian system, however the particular role of police is imminent to every legal system in the EU that recently introduced the EAW

14. significantly lesser objections on police work in investigation • claims were very rare, most of them are unfounded • in a domestic procedure, claims on police work are more often • all facts are already checked, judicial procedure is ensuring quality • any doubtful cases has already been selected • EAW - enhancing trust and mutual cooperation between countries

15. Defendants' Complaints against Police Work in European Arrest Warrant Proceedings Dr. Željko Karas Police College, Zagreb (Croatia)