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The European arrest warrant: a success story that needs to be revisited

Hurriedly adopted inter alia as a response to the 9/11 terrorist attacks, the European Arrest Warrant Framework Decision (EAWFD) is the flagship initiative of the EU judicial cooperation in criminal matters. Its cornerstone is the principle of mutual recognition. Applied to judicial decisions, the mutual recognition principle implies that a decision taken by a judicial authority in one EU Member State (MS) is recognised, and where necessary, enforced by other MS. Therefore, this principle is based on the assumption that although the national criminal systems feature considerable differences, they are equivalent.

The European Arrest Warrant (EAW) has reduced the duration of surrender procedures between MS, facilitated the free movement of persons within the EU and contributed in fighting cross-border crime. However, the automatic mutual recognition underlining the European Area of Justice, Freedom and Security is currently being questioned by concerns about the differences in fundamental rights protection between MS. For instance, studies have shown that there is a different level of protection of procedural rights among the MS and that some judicial authorities do not apply any proportionality test before issuing an EAW, which leads to EAWs being issued for minor offences.

Handcuffs

@ Artaha / Fotolia

As a consequence, the EAWFD has been implemented in diverse ways by the MS. Several initiatives at EU level are designed to ensure a more homogenous execution across the EU. Some legislative measures have been taken in order to reinforce mutual trust between MS. In this vein, three Directives (see below) aiming at protecting the suspects’ procedural rights have been adopted. The new legal framework set by the Lisbon Treaty, namely the Court’s extended jurisdiction which will apply to the former third pillar instruments starting in December 2014, is also likely to contribute towards evening out EAWFD implementation among the MS.

Nevertheless, these initiatives need to be complemented by a reform of the EAW system. This reform would need to address the EAW’s operational flaws without undermining its efficiency. To this end, MEP Sarah Ludford (ALDE, UK) has been appointed Rapporteur for a report on the review of the EAW.

Analysis

European arrest warrants: ensuring an effective defence / Justice – UK, 2012, 182p.
This study considers the EAW from the perspective of the requested person and looks at the best practices in terms of effective defence in EAW cases. It also includes country reports focused on Denmark, Germany, Greece, Ireland, Italy, Netherlands, Poland, Portugal, Sweden, and United Kingdom.

Europe’s most wanted? Recalibrating trust in the European arrest warrant system / Sergio Carrera, Elspeth Guild, Nicholas Hernanz, Centre for European Policy Studies, March 2013.
While evaluating the misapplications of the EAWFD, this CEPS special report suggests that the mutual trust hypothesis on which the EU criminal justice cooperation is based can no longer apply as there are doubts about the functioning of some parts of national criminal justice systems. The authors insist on the need to improve the system of statistical collection and to ensure an independent and accurate assessment of the EAWFD implementation. To this end, several methodological deficiencies in the way MS report their data have to be dealt with: incompleteness, inaccuracy and inconsistency.

The EAW and its achievements

Report from the Commission to the European Parliament and the Council on the implementation, since 2007 of the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States / European Commission, 2011.
Just like the two previous ones (published in 2005 and 2006), this European Commission report underlines how the EAWFD has facilitated surrender procedures between MS and ensured that open borders are not exploited by those seeking to flee justice. Indeed, from 2005 to 2009, between 51 % and 62 % of requested persons consented to their surrender, on average within 14 to 17 days. Furthermore, the average surrender time for those who did not consent was 48 days compared to the one-year average for extradition procedures. The surrender procedure developed in this instrument which abolished the dual criminality requirement for 32 crimes is now basically judicial. Also, as the Commission points out, the EAWFD has reinforced the free movement of persons within the EU.

The European arrest warrant – a victim of its own success / Karen Weis, in New Journal of European Criminal Law, vol. 2, no. 2, 2011, pp. 124-132.
The scholar dedicates a few pages of her article to the role of the EAWFD in fighting cross border crime. She mentions that among those surrendered, thanks to the EAW, were a failed London  bomber  caught  in  Italy,  a German  serial  killer  tracked  down  in  Spain,  a suspected drug smuggler from Malta extradited from the UK.

Shortcomings revealed by the practical application of the EAW

Fundamental rights safeguards in EAW procedures

The EAW Framework Decision (EAWFD) has often been criticised (Smith, 2013) for its insufficient consideration for fundamental rights. Although recitals 12, 13 and 14 of the EAW framework decision refer indeed to the fundamental rights of the person subject to an EAW, the main body of this legal instrument does not include the risk of fundamental rights violations among the grounds for non-execution of an EAW. However, some MS have chosen to introduce a fundamental rights exception in their implementing legislation which has led to a heterogeneous regime considered as inefficient in ensuring the protection of suspected persons. An important aspect the EU had to tackle in order to ensure mutual trust, and, therefore, the recognition of judicial decisions is the protection of procedural rights. In a Roadmap on procedural rights in criminal proceedings adopted in 2009 the Council proposes a step-by-step approach:

Safeguarding suspects’ rights in Europe: a comparative perspective / Jacqueline Hodgson, in New Criminal Law Review, vol. 14, no. 4, 2011, 56p. You have to log in – for free – to read the full article.
This research paper emphasises the uneven protection of procedural rights across the EU and, as a consequence, the need to ensure the respect of uniform safeguards at EU level. All in all, the author explains the compulsory nature of such a protection regime and its role in fostering mutual trust.

The European arrest warrant and defence rights / Daniel Mansell, in European Criminal Law Review, vol. 2, no. 1, 2012, pp. 36-46.
Written by a Fair Trials International policy officer, this article includes a series of FTI case studies which highlight some of the problems engendered by the fast-track extradition system developed in the EAWFD. More importantly, it contains FTI suggestions meant to reduce the human cost of the EAW system such as: including the necessary fundamental rights safeguards in the EAWFD – so that requested persons benefit from adequate protection during EAW proceedings – or passing strong measures at EU level in order to raise protection standards across the EU.

The European arrest warrant: the role of judges when human rights are at risk / Catherine Heard, Daniel Mansell, in New Journal of European Criminal Law, vol. 2, no. 2, 2011.
Based on the ECtHR’s decision in the MSS v. Belgium and Greece case (30696/09), this article suggests that MS cannot have blind faith in each others’ systems as guarantors of fundamental rights. More recent developments, in the EU case-law this time (N.S. and others v Secretary of State for the Home Department C-411/10), confirm this ruling. This case concerns the European asylum system which is also based on mutual trust. The EUCJ explains that the presumption of compliance by all MS with fundamental rights provisions, should be regarded as rebuttable. As the authors of this article found that between 2007 and 2010 EU MS had violated the Article 3 ECHR (prohibition on torture and inhuman or degrading treatment) in 181 cases and Article 6 ECHR (the right to a fair trial) in 1.696 cases, they suggest that there is scope for extending the N.S. case law to the EAW system.

The reference in Case C-396/11 Radu: when does the protection of fundamental rights require non execution of a European arrest warrant? / Alex Tinsley, in European Criminal Law Review, vol. 2, no. 3, 2012, pp. 338-352.
Tinsley highlights the diversity of practices between MS – those with no human rights protection available in the implementing legislation: Czech Republic, Hungary and Spain; the French model which includes a ground for refusal where it is “established” that the person is prosecuted for discriminatory reasons and those which have included human rights refusal grounds but with different thresholds. The author also discusses the applicability of the N.S. principle (see above) to the EAW regime. Even though the Radu case C-396/11 was seen by many commentators as an opportunity for the EUCJ to clarify the complex relationship between the execution of an EAW and the respect of the requested person’s fundamental rights, the EU Court limited its judgment to a less far reaching question, namely if before issuing an EAW, the authorities of a MS are obliged to give the suspect the opportunity to be heard.

The limitations of the mutual recognition regime

The articles presented in the previous section lead to the conclusion that fundamental rights considerations are not sufficiently reflected in the EAWFD. The heterogeneous practices applied by MS and the lack of an EU standard in the field lead to infringements of suspects’ fundamental rights. It is clear that this state of affairs is inconsistent with the principle of mutual recognition based on the assumption that domestic fundamental rights protection regimes are equivalent, constituting a serious gap in the EU criminal area.

From mutual trust to the full effectiveness of EU law: 10 years of the European arrest warrant / Ester Herlin Karnell, in European Law Review, vol. 38, no. 1, 2013, pp. 79-91. Click on “skip” when you are asked to log in.
Focusing his analysis on the recent EAW judgements of the EUCJ, João Pedro Lopes Da Silva Jorge C-42/11 and Melvin West C-192/12, Karnell notes the Court’s intention to ensure the full effectiveness of the EAWFD. According to the scholar, while moving away from the debate on the limits of the mutual trust approach, the EU judges anticipate the “communitarisation” of the old third pillar instruments which is established in the Transitional protocol for 2014.

The principle of mutual recognition – success or failure? / Sir Thomas John, in Era Forum, vol. 13, no. 4, 2013, pp. 585-588. Click on “IP authentication” when you are asked to log in
Sir Thomas John explains that there is a need for much more effective judicial cooperation in the implementation of the EAW system in order to ensure that those who are surrendered are dealt with speedily and justly.

Running before we can walk? Mutual recognition at the expense of fair trials in Europe’s area of freedom, justice and security / Emily Smith, in New Journal of European Criminal Law, no. 1, 2013, pp. 82-98.
The author of this paper asserts that mutual recognition should not be seen as an end in itself but as a means to combat transnational crime. Based on several case studies, this piece explains how the procedural rights directives would have influenced the outcome of several trials that took place before their adoption. Furthermore, Smith analyses the Commission’s proposal for a Directive on the right of access to a lawyer and on the right to communicate upon arrest and the Council’s position weakening the protection offered to suspects.

More about mutual trust in the field of EU judicial cooperation in criminal matters:

Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters / Pim Albers, Pascal Beauvais, Jean-François Bohnert, Martin Böse, Philip Langbroek, Alain Renier and Thomas Wahl, 2013, 390p.

Proportionality principle

Another issue that has arisen during the implementation of the EAWFD is the lack of consideration of the issuing authorities concerning the nature of the crime or other circumstances related to the suspect’s situation. Nevertheless, the EAW procedures not only have a human impact, but they also represent a burden on the resources of the executing MS.

The principle of proportionality and the European arrest warrant / Sarah Haggenmüller, in Oñati Socio-Legal Series, vol. 3, no. 1, 2013, 12p. You have to log in – for free – to read the full article.
The researcher distinguishes between prospective and retrospective disproportionality. If the first case refers to situations when the human and financial costs related to the extradition are disproportionate to the offence, the second consists of cases in which the executing authority deems the sentence imposed by the issuing state to be disproportionate in relation to the offence. The author claims that current debates only focus on the introduction of a binding proportionality test, without envisaging alternative solutions for the alleviation of disproportionate warrants.

The EAW and the non-discrimination principle

European arrest warrant cases and the principles of non-discrimination and EU citizenship / Ester Herlin-Karnell, in The Modern  Law Review, vol. 73, no. 5, 2010, pp. 824-835.
This case comment focuses on the analysis of the Wolzenburg C‑123/08 case and tackles the application of the non-discrimination principle and the concept of EU citizenship to the EAW disputes.

Uneven implementation

Initial views of the Court of Justice on the European arrest warrant: towards a uniform pan-European interpretation? / Gaetano de Amicis, in European Criminal Law Review, vol. 2, no. 1, 2012, pp. 36-46.
The weaknesses discussed above show the uneven implementation of the EAWFD among MS. To tackle this aspect, Gaetano de Amicis insists on the new competences conferred to the EUCJ by the Lisbon Treaty. If during the first five years after the introduction of the Lisbon Treaty, the Court’s jurisdiction was limited to the preliminary ruling procedure (only if the MS agreed to it), starting in December 2014, the EUCJ will have full jurisdiction on EU criminal law instruments, including the EAWFD. This extended competence will allow the EUCJ to rule in infringement procedures which, according to the scholar, will contribute to the homogenisation of EAW implementation.

Case law

The execution of an EAW and risks of fundamental rights’ violations

In order to enhance mutual trust between MS, the Court has repeatedly underlined their obligation to comply with fundamental rights even in situations that fall outside the scope of EU law (ex: Jeremy F. v Premier Ministre C-168/13). In the Radu case C‑396/11 the EUCJ noted that obliging MS to give suspects the opportunity to be heard before issuing an EAW would slow down and reduce the efficacy of the entire mechanism. The EUCJ maintained the same line of thought in its Melloni (C-399/11) ruling. Once again, the grounds for refusal of an EAW listed in the FD were regarded as exhaustive. Furthermore, the Court stressed that a MS cannot avail itself of Article 53 of the EU Charter of Fundamental Rights and refuse the surrender of a person on the basis that the standard of protection of the right to a fair trail in its national constitution is higher than the one established in the national legislation of the issuing MS.

The execution of an EAW against nationals and residents

Article 4 of the EAWFD lists a number of optional grounds for refusing to execute an EAW. Among these exists the possibility of the executing MS to decline execution when the requested person is staying in, or is a national or a resident of that State and the execution of the sentence or detention will be done in accordance with its domestic law. In the Kolowski C-66/08 judgment the Court interprets the words “residing” and “staying” in order to clarify Article 4(6) of the EAWFD. Therefore, EU judges explain that a person is ‘resident’ in the executing MS when he has established his actual place of residence there and he is ‘staying’ there when, following a stable period of presence in that State, he has acquired connections with that State which are of a similar degree to those resulting from residence. Furthermore, in its Wolzenburg C‑123/08 judgement, the EUCJ stated that the Dutch legislation according to which foreign nationals can benefit from this disposition only once they have entered in possession of a residence permit of indefinite duration (i.e. after five years of continuous lawful residence in the Netherlands) is compatible with EU law. More recently, (João Pedro Lopes Da Silva Jorge C-42/11), the EU judges held that the French implementing law limiting this exception only to French nationals while completely excluding nationals of other MS regardless of their degree of integration in the French society is contrary to the principle of non-discrimination on the basis of nationality.

EAW issued for purposes of executing a sentence or a detention vs. EAW issued for purposes of prosecution

In its I.B. C-306/09 ruling the EUCJ explains that that the situation of a person who was sentenced in absentia and who can still challenge this decision, is comparable to that of a person who is the subject of a EAW for the purposes of prosecution. The surrender can, according to Article 5(3) of the EAWFD, be subject to the condition that the person concerned – who is a national or resident of the executing MS – is returned to the executing MS in order, as the case may be, to serve there the sentence passed against him.

The EAW and the ne bis in idem principle

The ne bis in idem principle is a fundamental principle of law which restricts the possibility of a person being prosecuted several times for the same acts and it represents one of the mandatory grounds for non-execution of the EAW. A famous ruling related to this aspect was issued in the Mantello C-261/09 case. The Court chose to play the mutual trust card again and insisted on the fact that when the issuing authority confirms there is no violation of the ne bis in idem principle, the executing authority has no reasons to apply this mandatory ground for non-execution provided for in Article 3(2) of the EAWFD.

For more information on the ne bis in idem principle in European law:

« Ne bis in idem » en droit européen : un principe à plusieurs variantes / Peter Oliver, Thomas Bombois, in Journal de droit européen, no. 9, 2012, pp. 266-272.

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