ABSTRACT
On 1 July 2013, Croatia became the 28th European Union (EU) Member State. The Croatian ‘accession party’was not attended by the German Chancellor Angela Merkel, who thus expressed her discontent with the change in Croatia’s approach to EU legislation at the dawn of EU membership. Two days before the country became an EU Member State, the Parliament of Croatia adopted the amendments to its Law on Judicial Cooperation in Criminal Matters with the Member States of the EU, preventing the extradition of its own nationals to the EU Member States for crimes committed prior to 7 August 2002. The time limitation in the Croatian law corresponded to the date of the enforcement of the European Arrest Warrant (EAW) (Framework Decision 2002/584/JHA), which has established common rules for surrender and extradition among the EUMember States. Previously, the Croatian Law, similar to the laws of another 22 EU Member States, did not contain a temporal limitation on extradition and the country changed its Constitution in 2010 in order to be able to implement the EU’s legislation. The abrupt legislative
changes followed Germany’s request of June 2013 for the extradition of Josip Perkovic,́ a former security agent, charged for the assassination of a Croatian political émigré in 1983. The underlying amendments, commonly referred to as lex Perkovic,́ reveal the underpinning questions of the paper. How far does Europeanisation reach when transforming the state-citizen link? How do the different countries respond to the challenges produced by the external requirements for adaptation and the domestic sovereignty concerns? Starting from the above questions, this paper examines the interplay between the pro-
cesses of Europeanisation and transition that the post-Yugoslav states are faced with. Contrary to some recent work on the nature of compliance in the Western Balkans (Freybourg & Richter, 2010; Noutcheva, 2012),1 it argues that policy transfer in constitutional matters, although the adaptation period is longer, has a deep transformative effect both through the institutional lock-in and the spillover on other policy areas. In other words, compliance in areas requiring the change of the constitutional identity of the state directly related to the state-citizen link is progressive and intensifies in the years immediately preceding the accession. Hence the impact of Europeanisation on the constitutional protection of nationals against extradition is transformative. This however does not imply that extradition will cease to be politically controversial. As the case of lex Perkovic ́ illustrates, the tension between the legal and political dimensions of extradition is likely to persist in the Western Balkans, as has also been the case in high-profile cases in the old EU Member States. To elucidate this argument, the paper analyses vertical (legal adaptation) and horizontal
consequences (conclusion of bilateral agreements) of Europeanisation on citizenship in the post-Yugoslav states. It does so by examining the evolution of the different states’ policies related to extradition of their own nationals. The research puzzle revolves around three key issues, including (a) the consequences of the change in the nature of political conditionality of the EU; (b) the tension between the internally impermeable and externally porous character of sovereignty in newly established states; and (c) horizontal manifestations of vertically derived norms as catalysts of the aspiration of the post-Yugoslav states to meet the accession requirements. The criteria for EU accession have evolved so as to ensure not only a stable democratic
political environment, but also regional cooperation and good neighbourly relations. In the aftermath of 9/11, the establishment of an area of freedom, security and justice in the EU has given birth to the EAW, which has become a part of the EU acquis that the new Member States have to comply with. The EAW abolishes the political dimension of the traditional approach to extradition, and transforms it into a judicial process. By eliminating dual criminality in a number of areas and by allowing the surrender of nationals,2 the EAW dilutes the prerogative of the sovereign state in regulating the state-citizen link (nationality in international law); it curtails the state’s jurisdiction to prescribe (surrendering state); but expands the territorial exclusivity of jurisdiction to enforce (requesting state). The different successor states of the former Yugoslavia have different policies on extra-
dition of their own citizens, and some (e.g. Slovenia in 2003, Croatia in 2010) have altered them in view of the requirements of the accession process. On the one hand, the state has the duty to protect its citizens, which is reflected in the constitutional order of the successor states of the former Yugoslavia (general prohibition of extradition of its own citizens – nationality exception). On the other hand, in the context of the Balkans, where facing the past, regional cooperation, and the reduction of trans-border crime are all conditions
for entering the EU, extradition of the country’s own citizens becomes an important tool for democratic consolidation and reconciliation among countries. Changes in the constitutional and legal norms related to the extradition of the country’s
own nationals in the post-Yugoslav states are examined through the lenses of Europeanisation. To best compare the effects of Europeanisation on citizenship in the context of extradition, this research classifies the countries in line with their proximity to integration into the EU. This is also methodologically important, because different incentives and factors operate in the aspiring members at different stages in the accession process. In terms of structure, this paper is divided in three sections. The first two explore the con-
ceptual issues surrounding the transformation of Europeanisation and sovereignty in the post-Yugoslav space, and thus offer a contribution to the general political science literature. The third section is empirical and presents an analysis of the nationality exception in three categories of post-Yugoslav states – EU members, candidate countries, and potential candidates and contested states, with the aim of helping the understanding of the vibrant and transforming post-Yugoslav space.
