European arrest warrant and refusal of execution

Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

By decision no. 728/30.04.2012 of the Supreme Court (sitting in council), the appeal of 08.03.2012 by the Prosecutor of Appeals of Athens against decision no. 38/07.03.2012 of the Athens Council of Appeals was dismissed; by that decision the request of the Spanish Authorities for execution of European Arrest Warrant no. DP 224/2009, dated 12.03.2010, was rejected. The warrant had been issued by the judge of the Third Central Investigating Court of the Audiencia Nacional of Spain against the foreign national S.L., resident of Thessaloniki.

The Supreme Court, by the above decision, followed its own settled case law, according to which a European Arrest Warrant (as well as any other arrest warrant of a foreign state) is not executed when the acts charged were committed, even in part, in Greece. The said Supreme Court decision held that, from the provisions of Articles 9 and 18 of Law 3251 (“European arrest warrant etc.”), it follows that the competent authority for the issuing of the decision to execute the European arrest warrant, if the requested person (that is, the person against whom the arrest warrant was issued) does not consent to being brought before the issuing state, is the Council of Appeals in the district where that person resides or is arrested. From Article 22 of the same law it further follows that an appeal against the final decision of the Council of Appeals may be brought by the requested person or the prosecutor within twenty-four hours from publication of the decision before the Supreme Court, which rules in council after summoning the requested person. The appeal under consideration, dated 8 March 2012, by the Prosecutor of Appeals of Athens against decision no. 38/07.03.2012 of the Athens Council of Appeals, by which the request of the Spanish Judicial Authorities for execution of European Arrest Warrant file no. DP 224/2009 of 12.03.2010 was rejected, the warrant having been issued by the judge of the 3rd Central Investigating Court of the Audiencia Nacional of Spain against L.S., resident of Anthoupoli, Mygdonia, Thessaloniki, was filed lawfully and in time, in accordance with the aforementioned provision of Article 22 of Law 3251/2004. It must therefore be examined further as to its substantive merits. From the provisions of Article 1 § 2 of Law 3251/2004 it follows that the European arrest warrant is a decision or order of a judicial authority of a Member State of the European Union, issued for the purpose of arresting and bringing a person who is located in the territory of another Member State of the European Union and is wanted by the competent authorities of the issuing state in the context of criminal proceedings, either so that criminal prosecution may be brought against that person for an act attributed to him or so that a custodial sentence or security measure may be executed, subject to the condition that its issue does not infringe the fundamental rights and principles arising from the Constitution in force and Article 6 of the Treaty on European Union. From the provisions of Article 2 § 1 of the same law it follows that the European arrest warrant, for its formal validity, must contain (a) the identity and nationality of the requested person, (b) the name, address, telephone and fax number and email address of the judicial authority issuing the warrant, (c) reference to the enforceable judicial decision, arrest warrant or related order of a judicial authority, (d) the nature and legal classification of the offence, (e) a description of the circumstances of its commission, including the time and place of commission and the form of participation of the requested person, (f) the sentence imposed if there is a final decision, or the range of penalty provided for the punishable act and the law of the issuing state, and (g) to the extent possible, any other information concerning the punishable act and its consequences. A precondition for the issuing of a European arrest warrant, under Article 5 of the above law, is that the acts for which criminal prosecution is to be brought are punishable under Greek criminal laws by a custodial sentence or by a security measure involving deprivation of liberty, the maximum limit of which is at least twelve months, and, where execution of a custodial sentence or security measure already imposed is involved, that its duration be at least four months. A precondition for execution of the warrant, under Article 10 § 1 of the same law, is, in the case of issue for prosecution, that the punishable act for which it was issued also constitutes an offence under Greek criminal laws and is punishable under the law of the issuing state by a custodial sentence or by a security measure involving deprivation of liberty, the maximum limit of which is at least twelve months; while under paragraph 2 of that article execution of the European arrest warrant is permitted, without verification of double criminality, for the punishable acts referred to in that paragraph, as they are defined by the law of the issuing state, provided that they are punishable in that state by a custodial sentence or security measure involving deprivation of liberty, the maximum limit of which is at least three years. The European warrant, further, is executed subject to the provisions of Articles 11 to 13 of the above law. Article 11 of Law 3251/2004 provides that the judicial authority deciding on execution of the European arrest warrant refuses its execution, among other cases, also when, under item g, the European arrest warrant has been issued for a punishable act which is considered under Greek criminal law to have been committed wholly or in part in the territory of Greece or in a place assimilated to it. Moreover, under Article 16 of the Criminal Code, the place where an act was committed is considered to be the place where the perpetrator committed wholly or partly the punishable action or omission, as well as the place where the punishable result occurred or, in the case of attempt, where according to the perpetrator’s intention it should have occurred. Finally, under Article 12, case a, of Law 3251/2004, the judicial authority deciding on execution of the European arrest warrant may refuse execution of the warrant if the person against whom the European arrest warrant has been issued is being prosecuted in Greece for the same punishable act as that referred to in the European arrest warrant. In the present case, from the sworn testimony of the witness before the hearing of this court (that is, the Supreme Court, sitting as an appellate court), the examination of the requested person himself, what his defence counsel stated orally and in the memorandum submitted, the minutes of the session of the Council of Appeals and all the documents contained in the case file, the following are proven. Against S. L. the Third Central Investigating Court of the Audiencia Nacional of Spain issued European arrest warrant file no. DP 224/2009 of 12.03.2010, according to which he is alleged to have committed the punishable acts of (1) money laundering, (2) formation of an association of criminals, (3) forgery of an official or commercial document, (4) fraud, (5) illegal possession of weapons, (6) attempted homicide and (7) injuries by dangerous means. The requested person under the warrant is a resident of Thessaloniki and is alleged, during the period from 27 July 2009 to 12 March 2010, to have directed a criminal organization committing the above offences and to have directed its activity by orders given mainly from Thessaloniki. After the issuance of postponement decision no. 24/2012 of the Athens Council of Appeals, by which supplementary information was requested from the Spanish authorities, the latter, regarding the circumstances under which the offences attributed to the requested person were committed, stated that the offences were committed from 2009 until March 2010 and that their place of commission was various places; specifically, as to the offences of money laundering and formation of an association of criminals, from Greece, where the requested person was located, but the consequences developed in Spain, and as to the offences of attempted murder and injuries by dangerous means, also from Greece as regards the requested person, but the consequences developed in France and Italy, while the commencement of execution takes place in Spain. The Athens Council of Appeals accepted that the punishable acts of laundering proceeds from criminal activity, forgery, fraud and illegal possession of weapons were not determined satisfactorily in the European arrest warrant and in the supplementary information sent by the Spanish authorities, as to the circumstances under which they were committed (time, manner of execution and degree of participation of the requested person), and refused execution of the warrant on that ground as regards those acts; while for the punishable acts of participation in a criminal organization and instigation of attempted homicide and attempted dangerous bodily harm, it accepted that from the aforementioned documents of the Spanish authorities it follows that the place of commission is Greece, and refused execution of the warrant at issue on that ground. By the appeal under consideration by the Deputy Prosecutor of Appeals of Athens, the decision of the Athens Council of Appeals is challenged only as to the latter finding, namely that it wrongly accepted that the place of commission of the above punishable acts appears also to be Greece. Further, independently of the fact that the documents of the Spanish authorities expressly state that the place of commission is also Greece, by document protocol no. EKD 1170/12.03.2012 of the Prosecutor’s Office of Appeals of Athens there was forwarded to the Prosecutor’s Office of the Supreme Court the document of 09.03.2012 of the Prosecutor’s Office of First Instance of Thessaloniki, by which arrest warrant no. 8/2012 and case file no. G2012/2427 (79/12) of the investigating judge of the 6th Department of the Thessaloniki Court of Misdemeanours was transmitted; according to that warrant, the requested person L. S. is accused of directing a criminal organization and, more specifically, of having directed, at the above-mentioned place and time, a structured group with continuous activity consisting of at least three persons and pursuing the commission of several felonies provided for in Articles 299 and 310 of the Criminal Code. From the description of the above punishable acts attributed to the requested person by the investigating judge of the 6th Department of the Thessaloniki Court of Misdemeanours, it follows that they coincide with those attributed to him (as to place, time and manner of commission) by the European arrest warrant at issue, and therefore its execution is not permissible also on the ground that he is being prosecuted in Greece for those acts. Accordingly, the Athens Council of Appeals correctly refused execution of the European arrest warrant at issue and the appeal of the Deputy Prosecutor of Appeals of Athens must be dismissed. With these thoughts and findings, by decision no. 728/2012 of the Supreme Court, sitting in Council, the prosecutorial appeal was dismissed as unfounded and the settled case law of the Supreme Court on this matter was not changed.