Cause and Effect in European Politics and Law

First Conflict of Croatia with the Commission

Adelina Marini, August 23, 2013

From day minus one it was clear that Croatia would not be an obedient member of the EU, the so called "yessir". In the last working day before the country formally joined the Union on July 1st this year, the Croatian parliament adopted amendments to the law on police and judicial cooperation with the member states, which became famous as Lex Perkovic. Josip Perkovic is a former officer of the Yugoslav secret service UDBA and in that capacity he is sought by Germany for the murder of Croatian citizen Stjepan Djurekovic who is claimed to had stolen 200 million dollars from the INA petrol company and fled with the money to Germany. There Djurekovic turned into a dissident. The law on police and judicial cooperation, practically, harmonises the Croatian legislation with the European law and, in particular, it affects the implementation of European arrest warrants. Such a warrant has arrived on day one of Croatia's membership from Germany for Mr Perkovic who has never been on trial in Croatia after it gained its independence from Yugoslavia nor in Yugoslavia before its breakup for a crime committed in 1983.

With the amendments to the law a threshold has been introduced for implementation of European arrest warrants - for all crimes committed after 2002 when the arrest warrant was introduced at EU level. In this way, all who committed crimes before 2002 cannot be extradited. This caused a sharp reaction on behalf of Viviane Reding, a vice president of the European Commission responsible for justice. She gave Croatia a deadline until today (August 23) Zagreb to commit to bring its legislation in line with the European law. Otherwise, Article 39 of the Croatian accession treaty will be triggered which envisages the introduction of a safeguard clause on Croatia for a period of three years after the accession (the same with which Bulgaria joined). The Commission can impose the safeguard upon a request from a member state or upon its own initiative after consulting the other member states.

What is curious in this article is that the safeguard clause could be triggered before the accession which explains the impressive speed and timing of the adoption of the Perkovic amendment. Croatian media commented that this was one of the very rare cases when only within two weeks legislative changes were proposed and approved. The timing is also very telling because it coincides with the end of the ratification process (the beginning of June) and right before the accession. A period of complete institutional vacuum for the EU.

Germany is the country which could demand, if the Commission did not come up with own initiative, the imposition of the safeguard clause, but for now it is not clear whether it will come to that. A German MP recently sent a letter to the European Commission demanding it to take action in response to Croatia's actions. Prime Minster Zoran Milanovic, however, often reiterates that the fact that a member of the Bundestag asked for something does not mean that the very state of Germany wants it too. But the Perkovic amendment did overshadow the otherwise sparkling accession of Croatia to the EU, which was expected to be the white swallow that will freshen up the already highly exhausted enlargement process which also showed a number of flaws that could have long-term consequences. For weeks before July 1st it was expected that the official ceremony in Zagreb will be attended by Angela Merkel, the German chancellor.

In the last week, however, it became clear that there was no such event planned in her calendar. Both Croatia and Germany refuted this had anything to do with Lex Perkovic, but the doubts of media and the public remained. However, the celebrations in Zagreb were attended by Mr Reding who had a brief conversation with Premier Milanovic, during which she told him the move with the amendments to the law on police and judicial cooperation was not the smartest thing to do. She also told him something Bulgaria was also often hearing in the beginning of its membership - Pacta sunt servanda (treaties must be obeyed). "You knew, you signed and now you have to behave in the way your signature obliges you", Ms Reding was quoted telling him in an interview with several journalists in the early morning of July 1st.

But PM Milanovic disagrees. In an interview on August 19th, the first working day of his government after the summer vacation, he said several highly interesting things. First and foremost he again downplayed the demands of Vice President Reding saying that, in fact, the Commission was a college of commissioners and the issue "Perkovic" was not an issue for the entire Commission. Every commissioner has his/her own agenda which they try to put forward, the prime minister explained. The second very important thing is that the rules of the European arrest warrant, practically, discriminate the new member states. Not the same rules apply for Croatia as for Austria and France, he said.

The framework decision for the European arrest warrant from 2002 allows for several exceptions. One is for France which states that it will continue to process the requests for extradition of suspects for crimes committed before the 1st of November 1993 (the date of entry into force of the Maastricht Treaty) on the basis of the system that was applied before 1st of January 2014. In other words, on a bilateral basis and depending on the case. Austria, too, stated an exception similar to the French one. Moreover, under the decision, Vienna has written down that an arrest warrant can be rejected when the investigated individual is an Austrian citizen or the crime is not punishable under Austrian law. Exceptions have stated several other member states as well. Those that joined after 2004, though, are obliged to implement the warrants in their entirety and without exceptions.

And this is something Milanovic does not like. He said that this was a topic for conversation which, however, will not be held with the Commission but with the member states which are responsible for changes. The fact that we have committed ourselves does not mean we cannot talk, he added. The premier again called on the amendments not to be nicknamed "Perkovic" as they were not made specifically for him. Milanovic firmly denied knowing Perkovic personally nor any member of his cabinet. He also said he did not feel any empathy with regard to the accusations against him. Nonetheless, he has to be sued for his crimes in Croatia. And this emerges as a highly sensitive problem for the country. A problem which it will hardly yield on.

The reason is that after the wars in former Yugoslavia, Croatia, for the sake of its European integration, was forced to "give up" some sovereignty by handing over to international justice those sought for war crimes. Tens of high and not as high officers were handed over to the Hague tribunal to be investigated and judged. Two key generals from Croatia's independence war were acquitted by the tribunal less than a year ago - Ante Gotovina and Mladen Markac. It is not to be ruled out that any other demands to extradite Croatian citizens for judicial proceedings abroad could be perceived as another "deprivation of sovereignty". The problem is, though, that Perkovic is not indicted nor any proceedings were initiated to investigate the political murders committed by UDBA in foreign countries at the time of former Yugoslavia. And according to Croatian sources, these killings were not a few.

The Perkovic case has another side, too, and it is that the committed crimes in the past have expired. That is why PM Milanovic said the other day that even if Croatia wanted it could neither trial nor hand Josip Perkovic over to Germany because of a legal prescription. For this reason, he will continue to insist on amendments to the Constitution that will remove the legal prescription for political crimes. The ruling majority attempted to pass its ideas for a referendum on the issue in the very end of the parliamentary season, but they met resistance by the opposition and one of the partners in the Kukuriku coalition - Vesna Pusic's liberals. She herself, also on national TV, said Croatia would stick to its commitments.

However, it will not be able to do that before the deadline of the Commission - August 23rd - expired. Her statement, though very cautiously worded, showed clearly the differences between her party and Milanovic's views. The first deputy prime minister and minister for foreign and EU affairs Pusic was explicit that Croatia committed, as all the other members after 2004, not to limit the execution of European arrest warrants to 2002. Those are circumstances that we have to deal with and we should not cause conflicts on this issue, Ms Pusic added.

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