I was requested to furnish a brief expert opinion on the following problems, with particularegard to the Gerhard Haderer case:
1. In view of the fact that the concept of freedom of art has different legal foundations and also different readings in the various EU member states, what threats does the new European Search Warrant entail for artists in the practice of their profession;
2. Can it really happen that an author, for instance, is charged with blasphemy in one country and then the subject of a European Arrest Warrant, even if the publication in question is, in the country of litigation, the result of a commercial contract between the publisher and a licensee:
3. What can be done on the European level to prevent artists coming under threat from the European Arrest Warrant in the exercise of their profession;
4. Are there any possibilities to make an issue of this question at the various national levels (for instance, with regard to the responsibility for publications [artist, publisher, gallery owner, etc.] or to the protection granted to the freedom of art in national law, etc.)?
I took the liberty of classifying these questions by subject in order to be able to reply to them more systematically. This expert opinion is therefore divided into the following thematic subgroups:
1. On the European Arrest Warrant in general
2. On the range of applicability of the European Arrest Warrant
2.1. Offences for which the rule of double criminality does not apply
2.2. Offences for which the rule of double criminality does apply
2.3. Consequences of this differentiation
3. On the range of protection of Article 10 EMRK (freedom of art)
4. Summary
5. Refusal of Enforcement on the example of the Haderer case
5.1. Preliminary comment: on the legal validity of the arrest warrant issued
5.2. Refusal on the grounds of the double criminality rule not being applicable
5.3. Refusal on the grounds of competing penal powers
5.4. Refusal on the grounds of an imprisonment in Austria
6. Avoiding unwanted consequences, prospects
1. On the European Arrest Warrant in general
On 13 June, 2002, the Council of the European Union adopted the “Framework Decision on the European arrest warrant and the surrender procedures between Member States” (2002/584/JI, ABl. L 190 of 18 July 2002). This was the first implementation of a legal instrument based on the principle of mutual recognition of decisions in criminal matters. Court decisions on imprisonment in criminal cases that were passed in one member state are to be effective, by the principle of mutual recognition, in other member states as well, so that “a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions […] within an area of freedom, security and justice” (cf. Recital 5 to the Framework Decision).
The European Arrest Warrant replaces the formal procedure of extradition. Prior to this, any decision on extradition required a lengthy trial. Sometimes courts would refuse extradition because they did not recognise the decision of the court in the country applying for extradition. Now replacing this lengthy extradition procedure, the European Arrest Warrant interferes in those principles of extradition law which are considered the central expression of the sovereignty of a country’s penal powers, notably the principle of double criminality and that of non-extraditability of persons from the country of which they are nationals.
The implementation of the “Framework Decision of the Council of the European Union on the European arrest warrant and the surrender procedures between Member States” was carried out on the national level by the “Bundesgesetz über die justizielle Zusammenarbeit in Strafsachen mit den Mitgliedsstaaten der Europäischen Union” (Federal Act on the judicial cooperation in criminal cases with the member states of the European Union, EU-JZG, Austrian Federal Law Gazette I No. 164/2004) which came into force on 1 May, 2004.
2. On the range of applicability of the European Arrest Warrant
Both the Council’s Framework Decision of 13 June 2002 and the Austrian EU-JZG start by differentiating between offences for which the execution of an arrest warrant issued in one member state and the extradition of the person in question may not be deemed dependent on the question of whether or not the principle of double criminality is applicable and, on the other hand, offences for which the execution of an arrest warrant may be refused on the grounds of a non-existing double criminality (i.e., because the offence is not punishable in the same way or to the same extent in either country).
2.1 Offences for which the rule of double criminality does not apply
Article 2 clause 2 of the Framework Decision on the European arrest warrant, and now also Appendix 1 of the Austrian implementation act EU-JZG contain a list of 32 offences for which the execution of an arrest warrant issued in one member state and the extradition of the person in question may not be deemed dependent on the question of whether the double criminality rule is applicable. These are:
participation in a criminal organisation; terrorism; trafficking in human beings; sexual exploitation of children and child pornography; illicit trafficking in narcotic drugs and psychotropic substances; illicit trafficking in weapons, munitions and explosives; corruption; fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests; laundering of the proceeds of crime; counterfeiting currency, including of the euro; computer-related crime; environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties; facilitation of unauthorised entry and residence; murder, grievous bodily injury; illicit trade in human organs and tissue; kidnapping, illegal restraint and hostage-taking; racism and xenophobia; organised or armed robbery; illicit trafficking in cultural goods, including antiques and works of art; swindling; racketeering and extortion; counterfeiting and piracy of products; forgery of administrative documents and trafficking therein; forgery of means of payment; illicit trafficking in hormonal substances and other growth promoters; illicit trafficking in nuclear or radioactive materials; trafficking in stolen vehicles; rape; arson; crimes within the jurisdiction of the International Criminal Court; unlawful seizure of aircraft/ships; sabotage.
Whenever any of these offences has been committed, member states are obliged to support other member states in the enforcement of their criminal law, even when they themselves do not consider the relevant behaviour as being punishable. This obligation may apply even to action against their own citizens, for the European Arrest Warrant does not contain the exemption clause that is otherwise standard in extradition contracts, viz. that nationals of one’s own country do not have to be extradited.
2.2 Offences for which the rule of double criminality does apply
For other types of offences the execution of the arrest warrant may be refused on the grounds that the behaviour in question is not punishable in the member state requested to execute the warrant (here: Austria) (cf. Article 2 clause 4 and Article 4 sub-clause 1 of the Framework Decision, as well as § 4 of the Austrian EU-JZG).
2.3 Consequences of this differentiation
It is true that this list of 32 offences for which the applicability of double criminality need not be established only contains punishable acts of considerable seriousness and prima facie does not seem to constitute any cause of alarm to artists. However, they are phrased in terms that give only a very general designation of offence fields, which the various member states can fill out at their sovereign discretion. Thus, for instance, it is left quite unspecified what exactly should be understood by “racism and xenophobia” or “counterfeiting and product piracy”. The various countries are therefore free to interpret these vague expressions according to their understanding of the law, and they do so in entirely different ways.
However, any extensively phrased offence of one member state—as long as it is covered by the vague term in the above list—falls into the sphere of application of the Framework Decision or the corresponding implementation law, just like a clear-cut offence from the list in another member state. As a result, if the principle of double criminality is abandoned, that criminal law system which extends the field of punishable offences most widely will be the one that asserts itself in the end.
The commission proposal which had preceded the Framework Decision (Proposal for a Council framework decision on the European arrest warrant and the surrender
procedures between the Member States of 19 September, 2001, 2001/0215 [CNS], KOM [2001] 522), which had been aware of this danger, wanted to make up for it by drawing up a “negative” list that would have allowed member states to list, by way of statement, certain activities that they did not want to penalise and therefore exempt from the sphere of application of the European Arrest Warrant, but this adjustment method subsequently did not find the consent of the Council.
3. On the range of protection of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (freedom of art)
However, a problem that is precedent even to that of the extent of interpretation for listed offences is the inconsistently regulated scope of protection of Article 10 ECHR (only activities which are not covered by the scope of protection of Article 10 ECHR can be deemed to be of potential prosecutable relevance). According to Article 10 ECHR, everybody is entitled to the free expression of their opinion, which encompasses the freedom of art, so that in all member states of the European Union the freedom of art is guaranteed by Article 10 ECHR. The level of protection in each country, however, varies insofar as on the one hand the exercise of this fundamental right can be subjected, for the purpose of protecting higher-order rights by national laws, to formal regulations, conditions, restrictions or legal sanctions, while on the other hand, the ECHR in some countries (such as Austria) is part of the constitution and therefore “superordinate” to individual criminal court decisions, whereas in other countries this is not the case.
Since there are diverging opinions in the various member states of the European Union as to the extent of protection that freedom of expression enjoys, it is quite likely that there will be diverging assessments of the question whether a given work of art still lies within the scope of freedom of expression and is therefore covered by the freedom of art principle or whether this is not the case. These national differences, however, are put into proportion by the fact that any decision at the national level (be it by a government authority or by a court) can be sent for appraisal to the European Court of Human Rights in Strasbourg, after all remedies granted by the judicial system have been used, i.e. after the matter has gone through all the courts. This can be brought about both by a member state of the European Union complaining about a violation of the European Convention of Human Rights by another member state (inter-state complaint) or by means of an individual complaint filed by the person concerned.
4. Summary
Due to the fact that the protection range of Article 10 ECHR, which governs the freedom of art, has been formulated—and is also being interpreted—in different ways, one cannot rule out a priori that arrest warrants will be issued “in breach of the convention”, i.e., in contravention of Article 10 ECHR. And since in the case of the 32 listed offences, among them for instance racism and xenophobia or counterfeiting and product piracy, the warrant must be executed regardless of whether the offence that the person concerned is accused of is even punishable in the country where the warrant is executed and whether it would apply to citizens of that country as well, it is quite possible that on the grounds of the European Arrest Warrant it might come to cases of unjustified arrests where later on it transpires that the incriminated behaviour is covered by the principles of freedom of expression and freedom of art according to Art. 10 ECHR.
The fact, for example, that there exists a contract between a publisher and a licensee according to the law of the country of conclusion does not preclude this, because the content of such an agreement can indeed be relevant under criminal law in the same country. The accusation of blasphemy, however—as long as it is protected by the freedom of art principle in Austria—does not justify extradition since it does not belong to one of the 32 listed offences. A European Arrest Warrant on account of offensive art (including art that offends religion) can therefore only be executed when the work of art is offensive to an extent that it constitutes a punishable act in Austria as well.
5. Refusal of Execution by the example of the Haderer case
5.1 Preliminary comment: on the legal validity of the arrest warrant issued
The Austrian cartoonist Gerhard Haderer was indicted in Greece—because of his cartoon volume “The Life of Jesus”—for having insulted religion, whereupon he was sentenced in the first court to six months in jail or a substitute fine of €1,600. The appeals court later acquitted him of the accusation of having insulted religion.
Before this second decision by the appeals court, a European Arrest Warrant had been issued against Gerhard Haderer. In this relation, the Greek authorities had to make sure whether Gerhard Haderer’s cartoon volume fell into the realm of protection of Article 10 ECHR, which they answered in the negative, because acts that are insulting religion are punishable according to Greek law. (Compare above under 3.: the level of protection granted by Article 10 ECHR is different in the various EU member states insofar as the exertion of this basic right granting protection of higher-order legal interests can be subjected to formal stipulations, conditions, restrictions or punishment caveats phrased in national laws. By Greek law, Article 10 of the ECHR is restricted insofar as acts constituting an insult to religion are not protected by the principle of freedom of art.) The issuance of a European Arrest Warrant by the Greek authorities was therefore not in breach of the convention.
5.2 Refusal on the grounds of the double criminality rule not being applicable in case of listed offences
However, the execution of the arrest warrant against Gerhard Haderer was opposed on the one hand by the fact that the artist was charged with an insult to religion and thus not with any of the 32 listed offences, which implies that his extradition could only have been realised according to the rule of double criminality—but his creative work is not punishable in Austria. The Austrian authorities would have had to make sure (and indeed they did so by their own volition, compare further below) about the legal relevance of the offence that Gerhard Haderer was charged with. Any extradition would only have been admissible if double criminality were a fact, which, however, was not the case.
5.3 Refusal on the grounds of competing penal powers
On the other hand, in the Haderer case there was also the procedural obstacle that a person may not be prosecuted in a member state for an action that was already the object of a court trial in another member state and for which prosecution in that state was conclusively abandoned.
According to Article 4 of the Framework Decision and/or to § 8 EU-JZG, a member state has the possibility to refuse the execution of a European Arrest Warrant if:
- it is itself taking legal action in this very matter,
- its judicial authorities “have decided … not to prosecute or to halt proceedings”, or
- a binding judgment in respect of the same action has already been passed in the executing state, another member state or a third country, which prevents further proceedings (in the executing state).
As the investigations in the Haderer case, which had been initiated by the Austrian authorities themselves, were closed because according to Austrian law no punishable act had happened, extradition could have been refused for this reason as well—if the matter had come as far as that at all.
In general this means that a person against whom a European Arrest Warrant was issued may enjoy complete freedom of travel certainly whenever he has already been finally convicted. If a case is pending but not yet closed, only the country in which the case is being tried has the possibility of refusing extradition by making recourse to this fact. In all other cases, a request for extradition can, in principle, be complied with.
5.4 Refusal on the grounds of a prison term to be served in Austria
Finally, the Austrian EU-JZG, in § 5 clause 4 which implements Article 4 sub-clause 6 of the Framework decision, contains the stipulation that is not permissible to execute a European arrest warrant against an Austrian citizen for the purpose of making him serve a term of imprisonment. Thus, whenever an Austrian legal authority is requested to execute such a European arrest warrant, the imprisonment sentence must be served in Austria if it were otherwise acceptable to execute the warrant. Any extradition under a European arrest warrant for the purpose of making somebody serve a term of imprisonment should therefore be refused while at the same time ensuring the execution of this term of imprisonment in Austria. So if Gerhard Haderer had actually been obliged to serve any prison term (abstracting away from the reasons mentioned above for refuting such imprisonment), he would have had to serve it in Austria.
6. Avoiding unwanted consequences; Prospects
At the level of the European Convention of Human Rights, action would therefore be needed primarily in the sense of a Europe-wide standardisation of the freedom of art, and of its legal regulation, for instance in the framework of an additional protocol to the ECHR.
Within the context of the European Arrest Warrant itself, there is the possibility at the European level to draw up a negative list—as had been proposed by the Commission— which would ensure that certain activities may under no circumstances constitute a cause for issuing a European Arrest Warrant.
Moreover, there is urgent need for action in the sense of concrete definitions for the 32 listed offences and the restriction of this list to cases of serious crimes (the three-year limit specified in Article 2.2 of the Framework Decision and in § 4 EU-JZG [Austrian Act on Judicial Co-operation in Criminal Matters]—saying that even the 32 listed offences must carry at least a three-year maximum sentence—constitute any guarantee that waiving the principle of double criminality only covers serious crimes).
At the national level it is in particular the possibilities of denying the execution of a European Arrest Warrant which should be extensively interpreted and broadly taken advantage of.
For any further questions please do not hesitate to contact me.
Sincerely yours
Univ.-Doz. Dr. Alfred J. Noll