Natalia Gorczowska, Andrew Symeou, Robert Hörchner are just three of the names often invoked to demonstrate what appear to be the lacunae of the European Arrest Warrant Framework Decision (EAWFD). A long-standing advocate for the reform and improvement of the EAWFD, MEP Sarah Ludford (ALDE, UK) has been appointed Rapporteur for a report on the review of the EAW. In this vein, Baroness Ludford organised a conference entitled: “The European Arrest Warrant: issues and solutions”, at which several suggestions tackling the EAW’s weaknesses were put forward.
Ideas for a EAWFD reform
A number of speakers agreed on the need for having a fundamental rights ground for mandatory non-execution of the EAW. As Jodie Blackstock (JUSTICE) asserted, even though the EU has a longstanding tradition as a fundamental rights promoter, some national judicial authorities are still not aware that they can refuse the execution of an EAW in cases of fundamental rights violations. Therefore, Pietro Suchan (Eurojust) agreed, such a clause has to be integrated in the body of the EAWFD. Nevertheless, several aspects regarding the formulation of such a provision need clarification. Firstly, what level of protection will it ensure? Will it be activated only when violations occur, or will it also cover risks of fundamental rights violations? Secondly, who will bear the burden of proof? Jodie Blackstock advocated a realistic threshold, to which suspects could comply by bringing some evidence of their fundamental rights being or risking being infringed, but emphasised the need to introduce a clear test in this sense so as to avoid uneven implementation. On this point, Anne Weyembergh (Université Libre de Bruxelles) mentioned a CJUE ruling, N.S. C-411/10, in the area of immigration dealing with the conflict between mutual recognition and the protection of fundamental rights, which could possibly be extended to EAW disputes.
The introduction of a proportionality test in the EAWFD was a recurring theme throughout the conference. Libby McVeigh (Fair Trials International) insisted on the need for the EAW to become a measure of last resort. Blackstock suggested that this test would take into consideration the impact on the requested person, the time elapsed since the offence, alternative measures which would be available, etc. However, Weyembergh advocated a less radical approach, suggesting that this issue could be tackled without a reform of the EAWFD, namely via national legislative measures, citing the ongoing reforms in Poland. Nevertheless, if such a test were to be introduced in the EAWFD, the EU legislator would need to decide whether the proportionality test should be conducted by the issuing and/or by the executing authority.
Several other suggestions were made, such as: clarifying concepts in the EAWFD (“judicial authority”, “prosecution”, etc.), providing more flexibility regarding time limits in order to ensure an effective defence in EAW cases, introducing the possibility of appeal which does not exist in all MS.
Other accompanying measures
Hans Nilsson (Council of the EU) advanced the idea of having a new Roadmap for strengthening procedural rights which would take into account other procedural rights and strengthen the protection of the six present in the 2009 Roadmap. Blackstock mentioned the need for mandatory training for defence lawyers and Weyembergh emphasised the existence of soft law measures such as the Handbook on how to issue an EAW which have already contributed to improving the EAW system.
The legislative initiative report Baroness Ludford will draft will enable the EP to decide whether a legislative proposal from the European Commission on this field is needed. Nevertheless, according to Anne Weyembergh, a reopening of the negotiations on the EAW would need to be tackled very carefully, keeping in mind the risk of regress.