Case 2018-2019
1
Joined Cases M-180/18 & M-181/18
Prosecutor’s Office v. Gully
1. Illiberania is a Member State of the EU since 2008. It is a former dictatorship that
transitioned to democracy in 1996.
2. The Political Party “Only Us” is currently the leading party in Illiberania’s ruling coalition
government. The discourse of Only Us, based on the fight against illegal immigration and
a return to traditional values, has earned it a spectacular rise in the polls from 4% to 32%
of votes cast in the last election.
3. During the election campaign, Only Us promised its voters several legislative reforms, as
well as a constitutional amendment, to implement an “Illiberanians first” policy and to
exclude foreign nationals from certain entitlements and rights. The Constitution now
includes a new Article 2b, according to which
“Illiberania is committed to the rule of law and to the preservation of the values that
ensure security and justice in the nation. To that end, no external or internal entity
or subject shall interfere in the free realization of the will of the people of Illiberania.
Parliament shall establish all the necessary measures to ensure the strict compliance
with this provision.”
4. Based on Article 2b of the Constitution, Parliament has passed an Act amending the
Illiberanian Criminal Code, establishing in the new Article 189ter, as a criminal offence,
any “public declaration or other form of action with a significant public impact that
directly or indirectly undermines the constitutional, territorial, cultural or ethical
integrity of Illiberania and its people”.
5. Article 213(4) of Illiberania’s Criminal Code was also amended in order to specify that
hate speech is limited to speech inciting violence against nationals of Illiberania only.
After the European Commission addressed its concerns over the discriminatory
character of the reform, the final version of the Act included a reference to violence
against nationals of a EU Member State. The final wording of the provision reads as
follows:
“A person who uses threatening, abusive or insulting words or behaviour, or displays
any written material which is threatening, abusive or insulting, is guilty of an
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offence, shall be sentenced to a penalty of a maximum of 2.000.000 szlots and/or
sentenced to imprisonment for three to five years, if—
(a) he or she intends thereby to stir up racial hatred against nationals of Illiberania
and/or of another Member State of the EU, or
(b) having regard to all the circumstances, racial hatred towards nationals of Illiberania
and/or of another Member State of the EU likely to be stirred up thereby.”
6. In January 2016 the Parliament of Illiberania passed an Act lowering the forced
retirement age of the justices of Illiberania’s Constitutional Court. After months of
institutional tensions, the Constitutional Court was almost entirely reappointed on
October of 2016, following the forced retirement of ten of its eleven justices.
7. That same year, Illiberania’s Parliament enacted the Judiciary Act, introducing the same
measure applied to the Constitutional Court’s justices to the members of the Supreme
Court and of the regional High Courts of the country. Shortly after the Act was passed,
the European Commission initiated proceedings pursuant to Article 7 TEU questioning
the Judiciary Act’s conformity with the values enshrined in Article 2 TEU. The Judiciary
Act is intended to enter into force on 1st January 2018, but the European Commission
and the Illiberanian government carried on with negotiations.
8. In light of the lack of developments in Illiberania and the Government’s unwillingness to
amend the scope of the judicial reforms, the European Council decided to vote on a
Decision pursuant to Article 7(2) TEU, to confirm the existence of “a serious and
persistent breach by a Member State of the values referred to in Article 2 [TEU]”. On 20th
January 2018 the European Council (with the absence of the Head of Government of
Illiberania, as set in Article 354, first paragraph, TFEU), voted and confirmed a breach of
Article 2 TEU as a result of the enactment and entry into force of the Illiberanian
Judiciary Act, but immediately suspended the effects of the Decision, with the purpose of
“contributing in a constructive way to the search of a solution to the situation in
Illiberania”. The suspension was enacted sine die.
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9. Freedonia is a Member State of the EU since 2010. It was a military dictatorship until
1999 and it acceded to the EU after a peaceful transition towards democracy.
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10. Igor Gully is the Chairman of the Sword and Nation Party. This party defends the
supremacy of Western civilization and Christian values, as well as the rise of physical
external borders, including borders with its EU neighbouring Member States. The party
also supports the withdrawal of Freedonia from the EU.
11. In late 2016 Igor Gully ran for the office of President of the region of Tartasia, a northern
and wealthy part of Freedonia that borders with Illiberania. Although Sword and Nation
was far from winning a majority in the regional elections and reached only 16% of the
vote, it made a coalition agreement with the conservative party and as of January 2017
Igor Gully is the President of the region of Tartasia.
12. On the 3rd of July of 2018, Igor Gully participated in a political rally of his party in
Verenoya, capital of the region of Tartasia. In the course of his speech, he made the
following statements:
“I believe in a pure and clean Freedonia. I believe in a free Freedonia because
freedom is the very core of our identity as a people, a Christian and free people. I
vomit when I see foreigners telling us what to do. I abhor it. And thus I ask you, my
dear brothers and sisters, to help me in this sacred quest to save the soul of our
beloved motherland, to please help me to put an end to this foreign covert invasion
of sin and evil. Because the evil is in our homes. The evil is next door. It is obscure, it
is heretical, it is coming to destroy us.
In fact, I will not ask you, I will not beg you, I am ordering you with all my patriotic
love to begin this quest to annihilate the darkness and sinfulness that lives with us,
an evil that awaits our moment of weakness to strike us and destroy us as a Christian
people of faith and values.
Citizens, brothers of the nation: I order you to raise the sword and drench it in the
unholy blood of the sinners. Free our country! Free Freedonia!”.
13. In the late hours of the same day, in Verenoya, and once the rally of Sword and Nation
was over, a masked group of individuals entered the home of Nizar Yussen, a young
Muslim engineer of Tunisian nationality, working as a project manager in a major
international tech company with a production site in Verenoya. Neighbours heard
shouting and screaming inside the home of Mr. Yussen and witnessed how the masked
group fled the premises with swords in their hands, some of them stained in red, to the
cry of “Sword and Nation. Free our country!”.
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14. When the neighbours approached the home of Mr. Yussen, they could see him lying
unconscious on the floor, surrounded by his wife and two children. By the time an
ambulance arrived at the site, Mr. Yussen had passed away as a result of multiple wounds
throughout his body. In the walls of the living room, written in blood, the words “Free
our country” could be read.
15. That same night, at 04h30 a.m., four University students, wearing hoods and driving a
van, were arrested in the outskirts of Verenoya carrying four swords with stains of blood.
They were put under arrest awaiting the prosecutor’s instructions.
16. On the 4th of July of 2018, the Prosecutor of Verenoya filed charges against the four
students for the offence of manslaughter, racially and religiously aggravated within the
meaning of the Freedonian Crime and Disorder Act, and requested from the Verenoya
district court that the suspects be remanded in custody without bail.
17. In the course of the interrogations, the four students claimed that their act was an
uncontrollable and involuntary reaction after hearing the speech of Igor Gully in Sword
and Nation’s rally of the 3rd of July. They argued to have suffered a transitory loss of free
will, attributable to Mr. Gully’s inflammatory rhetoric against foreigners and Muslims.
18. On the 6th of July the Prosecutor of Verenoya summoned Mr. Gully to attend the
Prosecutor’s office. In the afternoon of the same day, Mr. Gully, in the company of his
chief of staff and his lawyer, drove across the border of Freedonia with Illiberania and
checked himself in a hotel in the town of Cambrilda, a small capital of province of the
same name in southern Illiberania.
19. On the 7th of July the Prosecutor of Verenoya requested the district court to issue a
European arrest warrant against Mr. Gully, on the grounds of the charges filed against
him that very day, for breach of Article 355 of the Freedonian Criminal Code, which
precludes any speech based on racial hatred that incites violence. According to the
Prosecutor, the transcript of Mr. Gully’s speech on the 3rd of July, in relation with the
events that followed the rally, was sufficient evidence to support that the contents of the
speech amounted to a breach of Article 355 of the Criminal Code.
20. After reviewing the Prosecutor’s request, the district court of Verenoya issued a
European arrest warrant addressed to the competent judicial authority in Illiberania, as
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determined in the Illiberanian Judicial International Cooperation Act: the High Court of
the Region of Cambrilda.
21. On the 15th of July the High Court of Cambrilda received from the district court of
Verenoya the full file of the case, including the arrest warrant, in which the issuing
authority requested the surrender of Mr. Gully, for the purposes of conducting a criminal
investigation in which Mr. Gully is a suspect of a presumed offence of incitement of
violence by means of racial hatred. According to the Judicial Criminal Cooperation Act of
Freedonia, Article 355 of the Criminal Code is to be considered an offence of “racism and
xenophobia”, in the sense of Article 2(2) of the Framework Decision 2002/584/JHA, on
the European arrest warrant and the surrender procedures between the Member States.
In its request, the district court of Verenoya argued that this offence is not subject to a
verification of the double criminality of the act and therefore the arrest warrant should
be recognized and enforced by the competent judicial authority (the High Court of
Cambrilda).
22. On the 25th of July, the High Court of Cambrilda rendered a decision ordering the
surrender of Mr. Gully to the issuing authority for the conduct of criminal investigations.
However, and although the High Court’s decision ordering surrender was final, the
Prosecutor’s Office of Illiberania lodged an appeal in the interest of the Constitution
before the Constitutional Court on the 26th of July, thus producing, according to the
Constitutional Court Act, the stay of the procedures of surrender of Mr. Gully.
23. The appeal in the interest of the Constitution is a recent remedy introduced that same
year in the context of the Constitutional Court’s reform Act. It grants jurisdiction to the
Constitutional Court to review, on extraordinary grounds, final decisions of the ordinary
courts that directly or indirectly undermine a provision of the Constitution. The only
applicant with standing to appeal is the Prosecutor’s Office and/or the President of the
Republic of Illiberania.
24. On the 1st of August the Constitutional Court ruled on the case and quashed the decision
of the High Court of Cambrilda on the grounds of a breach of the constitutional
fundamental rights of freedom of movement and criminal legality. According to the
Constitutional Court, although Mr. Gully’s acts can be considered offences of racism and
xenophobia under the laws of Freedonia, the enactment of the new Criminal Code of
Illiberania limits the scope of these offences to attacks on nationals of Illiberania and/or
nationals of another Member State of the EU. Although Mr. Gully’s inflammatory
rhetoric can be interpreted as targeting any “foreigner”, including nationals of other
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Member States of the EU, it can also be interpreted as targeting nationals of third
countries only. The fact that the victim was a non-EU national is additional proof that
Mr. Gully’s remarks were targeting non-EU nationals. In the context of a criminal
procedure, the most favourable interpretation must prevail in the enforcement of
criminal rules, and this construction led the Constitutional Court to conclude that Mr.
Gully’s statements should have been considered to be addressed to nationals of third
countries and therefore they did not amount to a criminal offence under the laws of
Illiberania.
25. On the 14th of August, immediately after having been served the Constitutional Court’s
decision, the High Court of Cambrilda informed the parties of its intention to make a
preliminary reference to the Court of Justice, on the grounds of Article 267 of the Treaty
on the Functioning of the European Union. According to the High Court, the decision of
the Constitutional Court raises several questions of interpretation of Framework
Decision 2002/584 that require the interpretation of the Court of Justice. In particular,
the High Court granted the Prosecutor’s office and Mr. Gully’s counsel five days to
submit observations over the following point of law: is Framework Decision
2008/913/JHA of 28 November 2008 on combating certain forms and expressions of
racism and xenophobia by means of criminal law, to be interpreted in the sense that it is
opposed to a provision like Article 213(4) of the Illiberanian Criminal Code, that limits
offences inciting violence towards Illiberanian nationals and/or nationals of other
Member States of the EU?
26. On the 18th of August, once the High Court of Cambrilda had summoned the Prosecutor
and Mr. Gully’s counsel, the Prosecutor’s office filed an appeal in the interest of the
Constitution, requesting the Constitutional Court to order the High Court to refrain from
bringing a preliminary reference to the Court of Justice, and to make use of Article 56 of
the Constitutional Court Act, which grants jurisdiction on the Constitutional Court to
rule definitively on the substance of a case even if it concerns the interpretation and
application of statutory law, if the ruling is necessary and in the interest of justice.
27. On the grounds of Article 56 of the Constitutional Court Act, the Constitutional Court
ruled on the 21st of August granting the appeal, ordering the High Court of Cambrilda “to
refrain from referring any preliminary reference of interpretation to any court other than
the Constitutional Court” and ruling on the substance of the case. In its decision on the
substance of the case and based on Article 56 of the Constitutional Court Act, the
Constitutional Court reiterated its arguments of the decision of 1st August but went a step
further and ruled on the request of the district court of Verenoya, refusing the
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enforcement of the European arrest warrant on the grounds that under Illiberanian law
offences of incitement to violence based on racial hatred are limited to violence
addressed to nationals of Illiberania and/or nationals of other Member States of the EU.
28. The Constitutional Court referred its decision to the High Court of Cambrilda ordering
the closure of the proceedings and the transmission of the decision of 21st August to the
district court of Verenoya at the shortest notice.
29. On the August 31st of 2018 the High Court of Cambrilda, sitting in its criminal chamber,
rendered an order for reference for a preliminary ruling to the Court of Justice on the
grounds of Article 267 of the Treaty on the Functioning of the European Union, raising
the following questions of interpretation:
1. Is Article 267 TFEU to be interpreted in the sense that a Constitutional Court, in the
course of an appeal in the interest of the Constitution, is entitled to order a lower
court to refrain from referring a preliminary reference under Article 267 TFEU,
when the Constitutional Court has the power, and uses its power, to rule on the
substance of the case and to provide a definitive ruling that precludes further
decisions by the lower court?
2. Is Article 2(2) of Framework Decision 2002/584/JHA, on the European arrest
warrant and the surrender procedures between the Member States, to be interpreted
in the sense that the executing Member States cannot undergo a double
incrimination test of the offences enumerated in the said provision, even if the
offence in the executing state has been amended and at the relevant time of the facts
it does not cover all offences based on xenophobia and racism and, in addition, it
raises doubts as to its conformity with Framework Decision 2008/913/JHA of 28
November 2008 on combating certain forms and expressions of racism and
xenophobia by means of criminal law?
30. Immediately after the preliminary reference was filed, the Prosecutor’s Office lodged
another appeal in the interest of the Constitution before the Constitutional Court,
requesting the annulment of the order for reference.
31. On the same day, the Prosecutor’s Office instituted a formal accusation against Piotr
Hüberèn, President of the criminal chamber of the High Court of Cambrilda, Igor
Spetzür and Korinne Galasch, sitting members of the chamber, before the Supreme
Court of Illiberania. The Prosecutor argued that the president had committed a criminal
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offence in breach of Article 189ter of the Illiberanian Criminal Code. According to the
Prosecutor, the President of the criminal chamber and the two sitting members, by
disregarding the Decision of the Constitutional Court of 21st August 2018, had “directly
undermined the constitutional integrity of Illiberania”. By refusing to comply with the
binding decisions of the Constitutional Court, they allegedly breached their duty to
uphold the Constitution. According to the Prosecutor, Illiberania is a State governed by
the rule of law, and any departure from the Constitution endangers the integrity of the
State.
32. On September 1st 2018, in the context of the appeal in the interest of the Constitution
lodged before it, the Constitutional Court of Illiberania rendered an order for a
preliminary ruling to the Court of Justice. In its reasoning, the Constitutional Court
endorsed all the arguments of the prosecution and raised the following question:
“Is a national court considered to be “independent” in the terms of the case-law of
the Court of Justice pursuant to Article 267 TFEU, when the chamber making an
order for a preliminary ruling openly disregards the decisions of a higher court,
including an order not to refer a question for a preliminary ruling because the case
has been effectively resolved by the higher court, thus breaching the Constitution of
a Member State that proclaims the Rule of Law as an essential value of the State and,
at the same time, Article 2 TEU?”
33. The orders for reference were received by the Registrar of the Court, who assigned to
them respectively case numbers M-180/18 and M-181/18. In accordance with Article 23
of the Statute of the Court of Justice, the Registrar has notified the parties and has invited
them to submit written observations to the Court by November, 25th 2018.
34. The President of the Court of Justice has ordered the joining of both procedures on the
grounds of Article 54 of the Rules of Procedure of the Court of Justice.
35. Pursuant to Article 23, first paragraph, of the Statute of the Court of Justice, the
Prosecutor’s Office, acting as party in both the proceedings before the High Court of
Cambrilda and the Constitutional Court, has intervened in the proceedings. Pursuant to
Article 23, second paragraph, of the Statute of the Court of Justice, the government of the
Republic of Freedonia has intervened as well.
36. Mr. Gully’s legal counsel informed the Court of Justice of his client’s decision to refrain
from submitting written observations and from participating in the oral hearing.