European Arrest Warrant
The Full Bench of the Supreme Court delivered on 7/11/05 a judgment on the European Arrest Warrant provided in the Council Framework Decision of 13/6/02.
The Council Framework Decision was signed by all European Union Member States, including Cyprus, This decision was implemented into our legal system through the enactment of the European Arrest Warrant and Surrender Procedure Within the European Union , Law No.133(1)/04.
It was indicated by the Supreme Court that this was the first application for the issue of a European Arrest warrant of a national of the Cyprus Republic. The application was for the surrender of the requested person to the judicial authorities of the United Kingdom to be tried for the offence of fraud.
The application for the issue of a EAW, filed by the Attorney General was dismissed by the district court on the ground that the national law transposing the Framework Decision on EAW was unconstitutional. The Attorney General filed an appeal against the decision and the case was heard by the Full Bench of the Supreme Court.
The Attorney General limited his arguments on two grounds. Firstly he supported the supremacy of the European Law over any national law. He claimed that since the House of Representatives had enacted a law which implemented the provisions of the Framework Decision, precedence should be given to European Law over the provisions of the constitution. Secondly he suggested, alternatively, that the provisions of the law must be construed to conform to Article 11 of our Constitution.
Article 11 of the Constitution provides that :
“Every person ha the right to liberty and security of person. No person shall be deprived of his liberty save in the following cases when and as provided by law::-
(f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the republic or of an alien against whom action is being taken with a view to deportation or extradition”
The lawyer appearing for the requested person supported the decision. He argued that the law is unconstitutional because it contravenes the provisions of Article 11.2 (f) of the constitution.
The requested person has a dual nationality; he is a citizen of the Cyprus Republic and of the United Kingdom. However, according to the jurisprudence of the Supreme Court, irrespective of the dual nationality of a Cypriot citizen the provisions of the above Article are applicable to him.
The Supreme Court held that according to Article 34(2)(b) of Title VI of the Treaty of the European Union, the Council can adopt framework decisions, which are binding on the member states as to the result to be achieved but the choice of form and methods of achieving such results, is left to the National Authorities. Framework decisions are not directly applicable.
The Court went further and stated that the enactment of a law which is contrary to Article 11 of the Constitution is unsuccessful as to the result to be achieved.
The Supreme Court made reference in its judgment to decisions that deal with the conformity of EAW with constitutional provisions, issued by the Supreme Constitutional Courts of Germany and Poland, Areios Pagos of Greece and the French Council of State.
The Court ruled that the law cannot be construed in conformity with the Constitution, since Article 11 limits the grounds on which arrest is permitted. Arrest for the enforcement of the law, empowering the issue of a European arrest warrant is not included in Article 11. The Court held that the decision of the District Court was correct and dismissed the appeal.