Mutual Recognition in Criminal Matters in Cyprus

Mutual Recognition in Criminal Matters in Cyprus Theodora Christou,* Eleni Kouzoupi** & Helen Xanthaki*** Abstract As one of the newer Members of the European Union, this article outlines how Cyprus has adapted to the spirit of European Criminal Justice. As ‘the cornerstone’, the focus of this article is on mutual recognition in criminal matters and in particular the European Arrest Warrant Framework Decision which has acted as a blueprint for other mutual recognition measures. The article considers the implementing legislation and the case law to date. On the whole Cyprus has embraced with open arms the principles adding safeguards it regards necessary to uphold rights and freedoms whilst remaining flexible in it its stance to the extent of even amending its Constitution. A. Introduction: The Republic’s Legal System In 1960 Cyprus was proclaimed an independent and sovereign Republic.1 After independence the English legal system and principles of equity and the common law were maintained,2 while preserving civil law tradition in family and administrative law. These are accompanied by the Constitution of the Republic of Cyprus and laws subsequently enacted by the House of Representatives. The hierarchy of these laws is one area where difficulties have been encountered vis a vis national and European law.3 Following, what has been coined the arrest * European Cross Border Justice Project Manager, The AIRE Centre. Counsel of the Republic, Law Office of the Republic of Cyprus. The views presented in this chapter are personal and can only be attributed to the author in her personal capacity. They do not reflect, express or bind the views of the Republic of Cyprus. *** Senior Lecturer and Academic Director, Centre for Legislative Studies, Institute of Advanced Legal Studies, School of Advanced Study, University of London, Lawyer (Athens Bar). 1 For a recent analysis of the Cyprus problem, see A. Theophanous, The Cyprus Problem: Accession to the EU and Broader Implications, 14 Mediterranean Quarterly 42 (2003); also see K. Chrysostomides, The Republic of Cyprus: A Study in International Law, Developments in International Law (2000); O. P. Richmond, A Perilous Catalyst? EU Accession and the Cyprus Problem, 13 Cyprus Review 123 (2001). 2 T. Ehrlich, Cyprus 1958-1967 (1974). 3 R. Ayres, European Integration: The Case of Cyprus, 8 Cyprus Review 39 (1996). ** European Journal of Law Reform, Vol. XI, no. 1, pp 111-122. © Eleven International Publishing 2009. 112 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki warrant case, and within the framework of cooperative constitutionalism,4 EU law is now5 confirmed as supreme and sitting above the Constitution.6 The Attorney-General is a party to all domestic legal proceedings pursued against the Republic, or by it, and defends or institutes the proceedings in court, as the case may be, through a counsel of the Law Office. Moreover all prosecutions are instituted and conducted by the Attorney-General and counsel of the Law Office acting under his instructions.7 With respect to mutual cooperation in criminal matters, at first instance requests are dealt with by the District Courts of which there are 6 (Nicosia, Famagusta, Limassol, Larnaca, Paphos and Kyrenia). These decisions can in certain circumstances be appealed to the Supreme Court from which there is no further appeal. Judges in Cyprus are appointed after working as a qualified lawyer. There is no Judicial Training School in Cyprus with the responsibility falling on the Supreme Court. B. Mutual Recognition in Criminal Matters: The Present I. Mutual Recognition in General In general, the principle of mutual recognition, as a successor to the ineffective mechanisms of mutual legal assistance,8 is respected and well established in Cyprus law. The Republic fully adopted, and indeed within the set time limits all relevant Framework Decisions.9 In fact, the Republic does not require reciprocity between member states as a prerequisite for mutual recognition implementing measures. Also, mutual recognition of final judgments is not viewed differently from mutual recognition of pre-trial decisions. Moreover, the Republic chose to proceed with the express transposition of the general provision on fundamental rights which refers to Article 6 TEU in the national implementing measures on mutual recognition as a means of clear and categorical reassurance of the EU and other member states that Article 6 TEU applies. This was undertaken despite the doubtful legal value of the provision in practice: after all in Cypriot 4 A. Albi, Supremacy of EC Law in the New Member States: Bringing Parliaments into the Equation of Cooperative Constitutionalism, 3 European Constitutional Law Review 25 (2007). 5 Authors in the past demanded a referendum for that purpose: see for example Ch. Patsalides, Accommodating the Principle of Supremacy of Community Law to the Cypriot Legal Order – The Necessity For a Constitutional Amendment, 12 European Public Law 363 (2006). 6 M.-A. Gaudissart, Cyprus and the European Union: The Long Road to Accession, 8 Cyprus Review 7 (1996); also Ph. Nicolaides, Cyprus and the European Community: Looking Beyond 1992, 2 Cyprus Review 44 (1990). 7 A. Neokleous, Introduction to Cyprus Law 27 (2000). 8 H. Xanthaki, Eurojust: Fulfilled or Empty Promises in EU Criminal Law, 8 European Journal of Law Reform 175 (2006). 9 For example, J. Wouters & F. Naert, Of Arrest Warrants, Terrorist Offences and Extradition Deals. An Appraisal of the EU’s Main Criminal Law Measures against Terrorism after ‘11 September’, Institute for International Law Working Paper, no. 56, June 2004. Mutual Recognition in Criminal Matters in Cyprus 113 law human rights issues apply even where there is no express provision in the relevant instrument. Furthermore, Cyprus made a big compromise in agreeing to the inclusion to some instruments (such as the Framework Decision on the transfer of prisoners) of the territoriality clause enabling a member states to refuse to recognize and execute a decision issued for an offence wholly or partly committed on its territory. Cyprus disagreed with that provision for three main reasons: its antithesis to the Cypriot constitution, to the essence of the principle of mutual recognition and mutual trust, and to the scope of the instrument on the transfer of prisoners which after all was the rehabilitation of the convicted. In addition to the above, Cyprus has had to set aside the procedural differences in the recognition and execution of decisions between its common law system and the continental system of many EU member states: so far few difficulties in recognition and execution of decisions have been encountered. An example demonstrating this point can be drawn from judgements in absentia: although these are provided for in Cypriot law in exceptional and rare circumstances, the Republic did not view this as an obstacle for Cyprus’s acceptance of the Framework Decision on judgments in absentia. Further evidence of this positive approach can be found in the religious transposition of mutual recognition instruments into Cypriot law. Thus, the provisions on dual criminality and the territoriality clause are transposed exactly in the way they are worded in the Framework Decision on the EAW, where it is practically retained.10 Nevertheless, mutual recognition in Cyprus should not be viewed as an absolute right. Firstly, the reference to the fundamental rights in the mutual recognition instruments11 implies that a control should be exercised by the executing authority (grounds for refusal) on the procedural safeguards and the respect of the rights of defence in the issuing member states, especially if the issue is raised by the defence.12 Secondly, and perhaps more importantly, the Cypriot constitution sets commonly underestimated13 limits to the transposition and implementation of the principle of mutual recognition. Although in practice the Republic ensures that the relevant instruments are adopted fully, even in contradiction of the Constitution which has in the past been amended14 to allow for the surrender of own nationals under the EAW, limits have been placed with reference to the date of commission of the offence for which a person is wanted. The need for these limits, which are 10 N. Vennemann, The European Arrest Warrant and Its Human Rights Implications, 63 ZaöRV 103 (2003). 11 Art. 1 (3) of FD 13 June 2002, Art. 1 of FD 22 July 2003, Art. 3 of FD of 24 February 2005, at 8. 12 This concern is shared by others: S. Alegre & M. Leaf, Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study – The European Arrest Warrant, 10 European Law Journal 200 (2004). 13 F. Impalà, The European Arrest Warrant in the Italian Legal System: Between Mutual Recognition and Mutual Fear within the European Area of Freedom, Security and Justice, 1 Utrecht Law Review 56 (2005). 14 O. Pollicino, European Arrest Warrant and Constitutional Principles of the Member States: A Case Law-Based Outline in the Attempt to Strike the Right Balance between Interacting Legal Systems, 9 German Law Journal 1313, at 1323 (2008). 114 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki not unique in the European Union,15 refer to Parliament’s view that otherwise there would be retrospective application of the implementing law on the EAW,16 which would be contrary to the Constitution. In fact, the fifth amendment of the Cypriot Constitution provides that no provision of the constitution shall be considered as annulling laws, acts or measures taken by the Republic in compliance with its obligations as a member state of the EU. Moreover, based again on constitutional grounds, double criminality is considered an additional ground for refusal.17 Thus, the Republic requested the inclusion of paras. (3) and (4) in Article 10 of the Framework Decision on alternative sanctions. Under Article 10, for offences not covered by paragraph 1 the executing state may make the recognition of the judgment, the probation decision, and the supervision of probation measures and of alternative sanctions subject to the condition that the judgment relates to acts which also constitute an offence under the law of the executing state, whatever its constituent elements or however it is described. Furthermore, the Republic took additional measures in its implementation of the EAW in order to ensure that transposition would not create a vacuum: the implementing law on the EAW provides that it applies only between Cyprus and the Member States of the EU which also have implemented the Framework Decision on the EAW. For Member States who have not implemented the EAW, third countries and for those acts committed before after the set date, the old extradition system continues to apply. European Convention on Extradition can still apply in relation to those acts. For MS who have not implemented the EAW, third countries and for those only in relation to acts committed before after the set date, the old extradition system continues to apply. Also, the implementing law provides that extradition requests received before the operation of this law are handled in accordance with the previous regime, namely the European Convention on Extradition. In addition to these points, it is noteworthy that in the implementing legislation of the Framework Decision on the EAW surrender may be refused if the persons are wanted for their fight for freedom; however, the provision has been criticised and the Republic is in the process of bringing a Bill before the House of Representatives for its deletion. But, do nationals and residents receive a particular status in the relevant national implementing measures of EU instruments on mutual recognition? In principle, all EU citizens enjoy the same status. However, in the case of the EAW, nationals and residents receive the status provided in the Framework Decision on EAW except for the fact that they can only be surrendered for actions committed after Cyprus acceded to the EU. 15 C. Gay, The European Arrest Warrant and its Application by the Member States, European Issues – Policy Papers of the Robert Schumann Foundation, No. 16/2006. 16 L. 133(1) of 2004. 17 V. Mitsilegas, The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU, 43 Common Market Law Review 1277 (2006). Mutual Recognition in Criminal Matters in Cyprus 115 II. The European Arrest Warrant The EAW is at the centre of the developing EU criminal justice and embodies many of the principles, including mutual recognition. Thus, the implementation of the EAW is a good example of how Cyprus has embraced the EU Criminal Justice mechanisms. The EAW Framework Decision18 was implemented by Law No 133(I) of 2004 on the European Arrest Warrant and the Surrender Procedures of Required Persons. On the whole its transposition is regarded as a success.19 There are few departures from the Framework Decision and where they exist they tend to extend the scope or purpose of the Decision. For example, in relation to the mandatory reasons for non-execution of an EAW in the interests of Constitutional compatibility and protection of human rights, Article 13 of the Law goes beyond what is required under Article 3 of the Decision. It states, (d) if the European arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions, sexual orientation or activity for freedom, (e) if the person who is the subject of the European arrest warrant, for the execution of custodial sentence or detention order, is a national and the Republic of Cyprus undertakes the obligation to execute the sentence or detention order according to its criminal laws, (f) if the person who is the subject of the European arrest warrant for his prosecution is a national, unless it is ensured that after being heard, he or she shall be transferred to the Republic of Cyprus, in order to serve a custodial sentence or a detention order which shall be passed against him/her in the issuing State of the warrant. The report of the Commission20 on the implementation of the EAW notes that the reference to “action in favour of freedom” in Article 13(d) of the Law was wider creating a risk that a refusal will go beyond the Decision. As a result of this a proposal was put before the Parliament to delete this reference. The central authority for issuing and executing EAWs is the Ministry of Justice and Public Order. Within this framework, the key actors include the police force, the Law Office of the Republic of Cyprus and the District Judges. In addition to the human rights guarantees inserted above, there are good pretrial procedural guarantees in place. For example those arrested have the right to both a legal counsel and interpretation, importantly as of right and practice. It is worth pondering the practical steps taken in the issuance and the execution of an EAW. As a first step the police will present the case to the Attorney-General who will give their opinion on whether one should be issued, the police will then draft the proposed warrant and present to the Attorney-General for a decision. 18 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. 19 Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 11 July 2007, COM (2007) 407 final and its accompanying Annex. 20 6815/05 ADD 1 COPEN 42. 116 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki The decision will be based on the proportionality principle, the seriousness of the offence, the situation of the victim and the date of the offence. The AttorneyGeneral will also ensure that the EAW is drafted correctly. The EAW, domestic arrest warrant and any evidence is presented before a District Judge which he will sign if satisfied they comply with the law. Once issued, the EAW is transmitted by the police to Interpol Nicosia and the central authority who will then transmit to the receiving authority. This procedure acts as a double check ensuring that procedural mistakes/omissions in issued EAWs are avoided as is the issue of triviality existing in many of the other Member States. Such a process will appear cumbersome to many of the larger Member States who are currently struggling to execute EAWs within the set time limits. However, when you consider that the purpose of the Decision is to promote cross border interaction between authorities and in particular peer interaction between the judiciary, in practice this is not fulfilled, despite the clear law set out in the Decision as well as Article 8 of the Law which states that a District Judge may transmit the incoming EAW directly to the executing judicial authority. The judiciary themselves also appear reluctant to communicate with other judges for clarification. This reluctance is largely based on the perceived role of a judge in the common law setting. A possible resolution to this could be the creation of a network of judges focused on the EAW and mutual recognition in criminal matters. The EAW whilst transposed under law distinct to the domestic arrest warrant, it is still very much connected. It is understandable that for outgoing requests a domestic arrest warrant needs to be issued as a first step and only after the evidence indicates that the person is found abroad is an EAW issued. However such a requirement for the execution of an EAW goes against the spirit of the Decision, for incoming requests a domestic arrest warrant needs to be issued before a person can be arrested under an EAW. Whilst this means that the procedures and procedural guarantees in place for domestic arrest warrants are of equal applicability for EAWs, it could also lead to problems in the future.21 The existence of a centralised database, the STOP-LIST, helps ensure the avoidance of duplicitous warrants. Looking to the future it will be interesting to see how this database is coordinated with the Sirene Bureau set up as part of the SIS, as well as whether access will be granted to Customs and MOKAS. The problems encountered to date by Cyprus are best illustrated through consideration of the case law on the issues. The first case is that of David Scattergood 22 who had pleaded guilty in a UK court to two charges of conspiring to import illicit drugs, was released on a recognisance and now was sought by the UK from Cyprus. His lawyer argued that his client had been arrested following the issuing of an arrest warrant in violation of Article 11 of the Constitution, since it was based on provisions of 21 Evaluation report on the fourth round of mutual evaluations “the practical application on the European arrest warrant and corresponding surrender procedures between member states.” Report on Cyprus, 13 November 2007, 14135/2/07, CRIMORG 155 COPEN 141 EJN 28 EUROJUST 53. 22 Scattergood v. Attorney-General, 12/2005, 21 January 2005. Mutual Recognition in Criminal Matters in Cyprus 117 the Criminal Procedure Law and not on provisions of the Law for the European Arrest Warrant-Law No. 133 (1)/2004.The Supreme Court rejected that argument, noting that the issuing of an arrest warrant by a court in Cyprus is not a sine qua non condition for jurisdiction by the Courts in Cyprus. The jurisdiction of a Court in Cyprus emanates from the EAW itself because, by virtue of Art. 3 of the Law No. 133(1)/2004, it is an order of a judicial authority of the EU Member state that is issued in the context of a criminal procedure for the purpose of having the requested person arrested and handed over to the issuing state. Scattergood also submitted that his life would be in danger if returned to the UK because he had been willing to appear as a prosecution witness against his co-accused. It was asserted that this was no longer an issue since he was not going to be a witness. The Supreme Court first considered the obligation of a State to protect a requested person, not only from acts of the state but also from acts of private persons, stating that where the danger posed is a violation of Article 3 of the ECHR, given the absolute character of the provision, serious consideration must be given to the allegations. After examining the facts of the present case, the Court concluded that the Appellant in the United Kingdom would not be in any greater danger than he would be in Cyprus. The appeal was rejected and the individual surrendered. In the Case of Igor Ovakimyan,23 the District Court of Limassol ordered the implementation of the EAW issued by the Dutch authorities against the Appellant. The appeal to the Supreme Court was based on 2 issues. Firstly that competence for issuing EAW cannot be granted to Public Prosecutors under the Framework Decision. On this issue the Supreme Court held that under Dutch law the Public Prosecutor, although operating under the responsibility of the Ministry of Justice, constitutes part of the judicial authority. Further, the competent authority for the issuing of EAW does not need to be a judge but can also be a Public Prosecutor as allowed under Dutch law and that it was up to each Member State to decide how to give effect to a Framework Decision which states that a EAW is to be issued by a ‘judicial authority’. Secondly, there was an assertion that the EAW was not properly issued. Whilst an original was not sent, the English translation was also signed by a second individual and not the authorising public prosecutor. The Supreme Court rejected these arguments finding that the whole administrative and judicial procedure operated reasonably within the spirit of Article 10(4)(5) of the Framework Decision and of Articles 4 and 8(4)(5) of the Law. The Appeal was rejected. The next case is that of Konstantinou,24 where the surrender of a dual British and Cypriot national was requested by the UK from Cyprus under an EAW. Here the Supreme Court considered within the context of the prohibition on extraditing its own nationals, firstly whether the EAW Law was implemented contrary to the Constitution and secondly the relationship between the Constitution and EU law. 23 24 Igor Ovakimyan v. Attormey-General, 266/2005, 19 September 2005. Attorney-General v. Konstantinou, 294/2005, 7 November 2005. 118 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki The unanimous decision held that Article 11 of the Constitution included an exhaustive list of reasons as to when a person can be arrested, which did not include for the purposes of a EAW and quoting its previous judgment in Georgiou v. Director of Central Prisons (1991) which confirmed the Constitutional prohibition of extraditing its own nationals. Further it ruled that the correct legal procedure should be followed to ensure that the EAW is implemented into Cypriot law. This case led to a Constitutional amendment with Art. 11 now reading: Arrest or withholding of a person with intent to obstructing the entrance without permit into the territory of the Republic or arrest or withholding of an alien against whom actions were taken with intent to deport or extradite or arrest or withholding a citizen of the Republic in order to extradite or surrender him, having in mind the reservations of the following provisions: […] The arrest or withholding of a citizen of the Republic with the intention of surrendering him based on a European Arrest Warrant is possible only with regard to facts that supervened or actions committed after the date of accession of the Republic into the European Union … The most recent case to be heard by the Supreme Court relating to the EAW is that of Eva Korina Andersson.25 This case illustrates the strong commitment of the Cypriot authorities to fulfil their EU obligations, whilst at the same time paying due regard to the procedural safeguards. On 1 September 2008 the Swedish authorities transmitted to the Cypriot Police an EAW for the Appellant for her arrest and surrender in relation her alleged participation in criminal offences committed in Sweden. On 8 October 2008, the Appellant was arrested and presented before the Court within 24 hours. The appellant did not consent to her surrender and a date for a hearing was set. On 31 October 2008, the District Court of Larnaca ordered the implementation of the EAW and the surrender of the appellant to the Swedish authorities. At the same time it ordered that she remain in custody until the date of her surrender. The decision was appealed to the Supreme Court on three grounds. Firstly, that the Swedish Public Prosecutor of the Economic Crimes Bureau was not the responsible authority for the issuing EAWs. This contention was examined and rejected by the first instance court. As noted from the translation of the EAW it is clear that no conviction was issued against the appellant and the surrender to the Swedish authorities was not to serve a sentence, but as a suspect for the commitment of alleged criminal offences for her prosecution. It was also clear from the letter of the Swedish Central Authority to the Cypriot Central Authority that every Public Prosecutor in Sweden, including the Public Prosecutors in the Office of Financial Crime, is a competent judicial authority for issuing the EAW. For the above reasons the Supreme Court adopted the first instance judgment. Under the second ground it was claimed that the first instance court relied mistakenly on the evidence which was deposited before it at the beginning of the 25 Eva Korina Andersson v. Attorney General, 349/08, 6 November 2008. Mutual Recognition in Criminal Matters in Cyprus 119 procedure. However, since the issue was not raised at first instance it could not constitute a ground of appeal. In addition it was noted by the Court that at the beginning of the first instance procedure, a report of all the relevant documents relied upon was presented to the appellant’s lawyer who did not object nor raise any issue of unconstitutionality. Thirdly, that the first instance court mistakenly rejected the medical evidence. On this issue the Court noted that it was not connected to the EAW procedure, but with the suspension of the execution of the judgment. This falls under Article 29(3) of Law 133(Ι) of 2004, according to which the decision to implement an EAW can be suspended for serious humanitarian reasons or if it is believed that the implementation might endanger the life or the health of the requested person. Accordingly a written submission should be made to the Central Authority, which will inform the judicial authorities so a new date for surrender can be fixed. Within the above framework the Court held that this ground of the appeal was not related to the substance of the validity of the first instance judgment. Under the circumstances the appeal was dismissed. The Constitutional amendment which now permits the surrender of Cypriot nationals under an EAW is still problematic with regards to the limitation that they will only be surrendered for crimes committed after Cyprus’ accession on 1 May 2004. As stated in the evaluation report, this is a clear violation of Article 32 of the Decision which provides, Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002. This limitation is likely to cause frustration amongst requesting states and in particular once the SIS is in place with its several thousand requests many dating before May 2004. Cyprus’ view is that to have otherwise would violate the nonretroactivity principle. This is however not accepted in the Evaluation Report as a valid ground since they regard the retroactivity rule as applying only to substantive criminal law and not procedural law. Further, this clause in is contradiction with the Constitution itself which clearly states that EU law is supreme. If not amended before hand, this Constitutional conflict will need to be resolved by the judges. On the basis of the information submitted to the Working Party on Cooperation in Criminal Matters (Experts on the European Arrest Warrant)26, it appears that there are no major problems with the application of the EAW in Cyprus. The domestic procedures are in place to facilitate the smooth and efficient running of both incoming and out going requests, with the key actors working well together to facilitate the execution of requests. From all accounts the surrender 26 Most recent 11 June 2008, 10330/08 COPEN 116 EJN 44 EUROJUST 58. 120 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki procedure occurs within the time limit set by Article 17(4) and Article 23(2) of the Framework Decision. This is no doubt all facilitated by the relatively small population and small number of EAWs it has to deal with. On the other hand the very procedural approach adopted by the authorities is at the detriment of fully appreciating the spirit of mutual recognition. In particular this can be seen by the minimalist involvement of the judiciary in the whole process. In addition to efficient procedures, mutual trust amongst the judiciary is key to the strengthening of mutual recognition and the successful evolution cross-border cooperation. C. Mutual Recognition in Criminal Matters in Practice27 Cyprus views the EU as a route guaranteeing stability, democracy and peace on the island.28 As a result, Cypriots are aware of EU matters.29 Policy makers have a clear picture about the principle of mutual recognition. It is understood as a principle designed to strengthen cooperation between member states. More specifically, it is understood that once a judgment is delivered in one member state it is not open to challenge in another member state but it is recognized and executed. In that sense mutual recognition of decisions contributes to legal certainty in the European Union. It is also understood that implementation of the principle of mutual recognition of decisions in criminal matters presupposes that member states have trust in each others’ criminal justice systems. Policy makers are familiar with the principle of mutual recognition as introduced in the Framework Decision on the European arrest warrant, Framework Decision on the transfer of Prisoners, Framework Decision on alternative sanctions and Framework Decision on judgments in absentia. Of course, practitioners are not involved in the phase of negotiations. During negotiations the Law Office of the Republic of Cyprus and the Ministry of Justice are primarily involved. Practitioners who deal with mutual recognition cases before the national courts have a clear picture of the principle of mutual recognition.30 Dual criminality and territoriality seem to apply as provided for in the instruments of mutual recognition. No problems have surfaced relating to the co-operation between member states, as there is no jurisprudence related to dual criminality and territoriality. 27 The following persons were interviewed for this report: Eva Rossidou-Papakyriacou, Senior Counsel of the Republic, Head for Combating Money Laundering; Eleni Loizidou, Senior Counsel of the Republic, Law Office; Elli Morfaki, Ministry of Justice; Elias Stefanou, Lawyer. 28 A. Theophanous, Prospects for Solving the Cyprus Problem and the Role of the European Union, 30 Publius 217 (2000). 29 O. Demetriou, Perceptions of the ‘European Union’: The Case of Cyprus, paper presented at the EUBORDERCONF project workshop on 1 July 2003, University of Birmingham; also, A. S. J. Hatay, The Contribution of European Integration to Ethnic Conflict Resolution: The Cases of Northern Ireland and Cyprus, 13 Cyprus Review 31 (2001). 30 M. Fichera & C. Janssens, Mutual Recognition of Judicial Decisions in Criminal Matters and the Role of the National Judge, 8 ERA Forum 177 (2007). Mutual Recognition in Criminal Matters in Cyprus 121 However, the non participation of practitioners in negotiations or in the drafting of national implementing legislation leads to a lack of awareness of debate in the field of judicial co-operation in criminal matters and more specifically the mutual recognition instruments. The problem is accentuated by the lack of training in the field for practitioners: so far only two seminars were organised by TAIEX in Cyprus. Moreover, there is no feedback mechanism on the results of mutual recognition in practice post facto. There is no forum for discussion of experiences, problems encountered and suggested ways out. There is no record of individual cases decided upon on the basis of mutual recognition. There are no relevant statistics available. D. Mutual Recognition in Criminal Matters: The Future The future of mutual recognition is not easy to foresee.31 By definition, the principle seems to be plagued by the fragmentation of EU criminal law,32 the fluidity of criminal law bodies and agencies,33 the overlap of such agencies promoting cooperation in criminal issues,34 and the conflicting interests of member states35 some of which support further integration whereas others reject36 the whole idea altogether.37 In fact, for some the problem is a reflection of the view that the inclusion of new members, some of which have only limited experience with pluralistic democracy makes some Community Member States query whether the Council continues to be the most appropriate forum for the development of instruments promoting international cooperation in criminal matters.38 As regards practical measures (measures to support and facilitate mutual recognition) in the field of judicial co-operation, there is much more that can be done now to enhance standards, for example promoting good practice and EU funding in areas such as recording police suspect interviews, letters of rights, and the use of technology – for example video conferencing in cross border cases for obtaining evidence or interpretation. Further, given the linguistic challenges all national criminal justice systems face in consequence of free movement, 31 B. Gilmore, I. Introduction, 77 Revue internationale de droit pénal 15, at 22 (2006). Xanthaki, supra note 8, at 196. 33 J. Monar, The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs, 39 Journal of Common Market Studies 747 (2001). 34 V. Mitsilegas, Operational Co-operation and Counter-terrorism in the EU, in F. Pastore (Ed.), Supranational Counter-terrorism. A Test Under Duress Fort EU Principles and Institutions, Centro Studi di Political Internazionale (CeSPI), Rome, Working Paper 22/2005. 35 S. Lavenex, Mutual Recognition and the Monopoly of Force: Limits of the Single Market Analogy, 14] Journal of European Public Policy 762 (2007). 36 S. Peers, Mutual Recognition and Criminal Law in the European Union: Has the Council Got It Wrong?, 41 Common Market Law Review 5 (2004). 37 J. Dine, European Community Criminal Law?, 1993 Criminal Law Review 246. 38 J. Schutte, The European Market of 1993: Test for a Regional Model of Supranational Criminal Justice or of Interregional Cooperation in Criminal Law, 3 Criminal Law Forum 55, at 55 (1991). 32 122 Theodora Christou, Eleni Kouzoupi & Helen Xanthaki consideration could be given, for example, to an EU telephone number anyone caught up in criminal proceedings could ring if they needed immediate interpretation help. Although approximation of laws (substantive or procedural) cannot be viewed as a necessary prerequisite for further cooperation39 based on mutual recognition,40 there is support in the strengthening of citizen’s procedural rights. This can be achieved without harmonization of national criminal procedures. E. The EAW A welcome development which can only enhance the understanding and practice of mutual recognition would be a declaration under Article 36 of the EU Treaty which would allow the Cypriot courts to submit preliminary rulings to the European Court of Justice regarding interpretation of third pillar instruments including the EAW Decision. The requirement to obtain a domestic warrant in addition to the existing EAW is a step which can be safely and legally abolished on the basis of the EAW Decision and Law as well as the constitution which only requires a ‘judicial warrant’. It will also be at odds with the requirement for immediate arrest under the SIS. The evaluation report has the greatest praise for the efficiency of the mechanism in place and for the professionalism of the authorities. Nevertheless, the very procedural obedience to the Decision without appreciation of the wider European framework together with the consideration of the EAW and not as part of the wider principle of mutual recognition, evidenced by the limited judicial role is not healthy. As previously stated, the mutual trust principle is a foundation of the EU Criminal justice system and the promotion of judicial cooperation. In the interests of the future of mutual recognition, for which there is no question of Cyprus’ positive sentiments, the Central Authority needs to take a step back and allow judges to step up to their role as envisaged in the Decision. 39 J. Rowbotham & K. Stevenson, Societal Dystopias and Legal Utopias? Reflections on Visions Past and the Enduring Ideal of Criminal Codification, 9 Nottingham Law Journal 25, at 37 (2000). 40 G. Conway, The Council of Europe as a Normative Backdrop to Potential European Integration in the Sphere of Criminal Law, 19 Denning Law Journal 123 (2007).