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Module 3 - The European Arrest Warrant – Overview of Key Provisions

Module 3 - The European Arrest Warrant – Overview of Key Provisions

editor - March 25, 2018

The Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (the EAW Framework Decision) was adopted in 2002, and entered into force on 1 January 2004. The legislation aimed to facilitate the surrender of people accused or convicted of criminal offences between EU Member States to improve cooperation in fighting serious cross- border crime, such as terrorism.

Key Provisions

What kind of measure is the EAW Framework Decision?

The EAW Framework Decision is a ‘mutual recognition’ instrument. This means that when the state where an offence took place issues a European Arrest Warrant (EAW), the state where the person who is alleged to have committed it, or is wanted to serve a custodial sentence in relation to it, is located is required to execute it. It replaced all previous extradition treaties between Member States.

What is a European Arrest Warrant?

Article 1(1) of the EAW Framework Decision states that ‘the European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person’. The EAW Framework Decision establishes a fast-track system for surrendering people from one Member State to another.

Which authorities can issue/execute EAWs?

Under Article 6(3) of the EAW Framework Decision, Member States must designate the judicial authority competent to issue and/or execute EAWs. This is done by notifying the General Secretariat of the Council of the EU.

Under Article 7(1) each Member State may also designate a central authority to be responsible for ‘the administrative transmission and reception of EAWs as well as for all other official correspondence ’. This is also done by notifying the General Secretariat. Recital 9 makes it clear that the role of the central authority ‘must be limited to practical and administrative assistance’.

When can an EAW be issued?

Under Article 1(1) of the EAW Framework Decision an EAW can only be issued ‘for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’. Under Article 2(1), an EAW can only be issued for the purpose of conducting a criminal prosecution if the offence is punishable by a custodial sentence or detention order of a maximum period of at least twelve months under the law of the issuing Member State. An EAW can only be issued for the purpose of executing a custodial sentence that has already has been passed if the sentence is for a minimum of least four months.

What is the process for issuing an EAW?

A form of EAW is set out in the Annex to the Framework Decision. Article 8 lists the information that must be included in an EAW, which is all included on the standard form and includes details such as the identity and nationality of the requested person, details about the issuing authority, the nature and legal classification of the offence, a description of the circumstances in which the offence was committed and, if there has been a final judgment, the penalty imposed.

Once the location of the requested person is known, the issuing judicial authority will transmit the EAW to the executing judicial authority. This may follow, or be accompanied by, an alert via the Schengen Information System or an INTERPOL notice.

What happens once an EAW has been issued?

The executing Member State will then arrest the requested person. Article 11 provides that upon arrest, the requested person must be informed of the EAW and its contents and will be given the option of consenting to surrender. The requested person must be granted the right to access a lawyer and an interpreter in accordance with the law of the executing Member State, and Member States must have measures in place to ensure that any consent to surrender is done voluntarily and in full awareness of the consequences (Article 13(2)).

If the requested person does not consent to surrender then he/she is entitled to be heard by the executing judicial authority.

What is the process for the executing authority to decide whether to surrender the requesting person?

The executing authority must decide within time limits prescribed by the EAW Framework Decision whether to surrender a requested person. If the executing authority is not satisfied that the EAW includes the information specified in Article 8, then the executing Member State may request the necessary additional information (Article 15(2)).

If consent to surrender is given, a final decision on the execution must be taken within ten days of that consent (Article 17(2)).

If the requested person does not consent to surrender, then s/he is entitled to be heard by the executing judicial authority. A final decision on execution must be made no later than sixty days following the date of arrest. The hearing itself is held in accordance with the domestic law of the executing Member State (Articles 17(3) and 19).

If the executing judicial authority decides to surrender the requested person, this must take place no later than ten days following the final decision.

Whatever the final decision, the executing judicial authority must notify the issuing judicial authority of it immediately, and reasons must be given for any refusal to execute an EAW (Article 17(6)).

Can the time limits be extended?

All time limits may be extended in exceptional circumstances, generally due to procedural problems in the executing state (Articles 17(4), 23(3)).

Article 23(4) provides that surrender may exceptionally be temporarily postponed for ‘serious humanitarian reasons’. One example is where there are ‘substantial grounds’ for believing that surrender would ‘manifestly endanger the requested person’s life or health’. The EAW must still be executed as soon as the relevant grounds (for example serious ill-health) have ceased to exist.

 Will someone remain in detention whilst awaiting extradition or the outcome of an extradition hearing?

The competent judicial authority in the executing state must decide whether that person should remain in custody pending his/her EAW hearing. This decision is made according to the domestic law of the executing Member State on pre-trial detention, provided that it takes all measures deemed necessary to prevent the person absconding (Article 12).

 

Are there any instances when a Member State must refuse to execute a warrant?

Article 3 lists the three circumstances in which it is mandatory for the executing judicial authority to refuse to execute a warrant. These are:

  • Where the offence is covered by an amnesty in the executing Member State (Article 3(1));
  • Where the requested person has already been finally acquitted or convicted by a Member State in respect of the same acts that make up the offence for which surrender is sought, provided that if a sentence was issued for the acts it has been served, is currently being served or many no longer be executed under the law of the sentencing Member State (the ne bis in idemrule) (Article 3(2)); and
  • If the requested person may not, owing to his age, be held criminally responsible under the law of the executing Member State (Article 3(3)).

Are there any instances when a Member State may choose whether or not to execute a warrant?

Article 4 of the EAW Framework Decision lists seven circumstances in which the executing judicial authority has discretion whether or not to execute the warrant. These include:

  • If the EAW relates to acts which would not constitute a criminal offence in the executing Member State (except for 32 categories of offence listed in Article 2(2) such as terrorism, murder, certain drugs offences and rape) (Article 4(1));
  • If the requested person is already being prosecuted for the offence in the executing Member State (Article 4(2));
  • Where authorities of the executing Member State have decided not to prosecute for the offence on which the EAW is based or have halted proceedings, or a final judgement has already been passed in respect of the relevant acts which prevent further proceedings (Article 4(3));
  • Where criminal prosecution or punishment is statute-barred according to the law of the executing Member State and the acts covered by the EAW are within its jurisdiction (Article 4(4));
  • Where the execution of the EAW would contravene the ne bis idem rule because the requested person has been finally judged by a third state (i.e. one not party to the EAW Framework Decision) (Article 4(5));
  • Where the EAW has been issued for the purposes of execution of a custodial sentence, if the requested person is staying in, or is a national or resident of the executing Member State, then the EAW may be refused provided that State undertakes to execute the sentence itself (Article 4(6)); and
  • Where the EAW relates to offences which were committed wholly or partly in the executing Member State, or were committed outside the territory of the issuing Member State (Article 4(7)).

Are there any further bars to extradition?

Under Article 5 of the EAW Framework Decision, individual Member States may decide, by passing domestic legislation, that surrender will be refused unless the issuing Member State gives one or all of the following guarantees:

  • If the offence forming the basis of the EAW is punishable by a life sentence or life-time detention order, surrender may be subject to the issuing Member State having certain provisions for a review of the sentence (Article 5(2)); and
  • If the requested person is a national or resident of the executing Member State, surrender may be subject to the issuing Member State returning the requested person post-trial to serve his/her sentence.

Are there any human rights grounds on which a Member State can refuse to execute an EAW?

All Member States are signatories to the European Convention on Human Rights (ECHR) and are therefore bound by its terms.

Recital 13 of the EAW Framework Decision states that:

No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or punishment.’

Article 1(3) makes it clear that the Framework Decision does not modify the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

However, it is important to note that there is no explicit right to refuse to execute an EAW on human rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK, have written a human rights refusal ground into national legislation. If your jurisdiction does not explicitly provide for this, then there may still be human rights arguments that can be put forward in EAW cases based on the provisions above and the rights enshrined in the ECHR.

Article 3 (No one shall be subjected to torture or to inhuman or degrading treatment or punishment)

Every Member State has obligations under the ECHR which should prevent them from extraditing someone who can show that they are at real risk of being subjected to ill-treatment in the issuing state. It is established by case law from both the European Court of Human Rights and the Court of Justice of the EU that an assumption that all EU Member States fulfil their obligations under the ECHR is not easily displaced, but can be rebutted by clear and cogent evidence (see for example MSS v Belgium and Greece[1] and NS and others v SSHD[2]).

Article 8 (Right to respect for private and family life)

Under Article 8 of the ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. Public authorities can only interfere with this right in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 concerns can arise in extradition cases where the requested person has an established family life in the executing state, especially where children are involved. It may be that extradition serves a legitimate aim within Article 8(2), the question that you should be asking is whether the extradition is proportionate to that legitimate aim.

Can Member States refuse to execute an EAW on the basis that the warrant is based on a conviction in absentia?

The EAW Framework Decision originally contained a provision (Article 5(1)) that allowed Member States to refuse surrender in certain situations where the requested person has been tried in absentia, unless assurances were provided about the availability of a re-trial.

Article 5(1) was replaced with Article 4a by Article 2 of Council Framework Decision 2009/299/JHA, for which the transposition deadline was 28 March 2011. Under this new provision, the executing state may refuse to execute an EAW based on a conviction in absentia unless, in accordance with the laws of the issuing state:

  • The requested person was either summoned in person and informed of the time and place of the trial, or was otherwise informed of the trial in a way that made it clear that s/he was aware of the trial, and s/he was informed that decision would be handed down in his/her absence if s/he failed to appear; or
  • The requested person, despite being physically absent at trial, was represented by a legal representative who was either appointed by the person concerned or by the state; or
  • After being served with the decision, and being informed of the right to a retrial or an appeal (in which the factual merits of the case can be re-examined), the requested person either expressly stated that s/he does not contest the decision, or did not request the retrial or appeal within the relevant time frame; or
  • Despite not having been served with the decision personally, the requested person will be served with it without delay following surrender, and s/he will be informed of a right to a retrial or an appeal, in which the factual merits of the case can be re-examined, and s/he will also be informed the time frame within which the application for the retrial or appeal has to be made.

Are there any human rights grounds on which a Member State can refuse to execute an EAW?

All Member States are signatories to the European Convention on Human Rights (ECHR) and are therefore bound by its terms.

Recital 13 of the EAW Framework Decision states that:

No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or punishment.’

Article 1(3) makes it clear that the EAW Framework Decision does not modify the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

However, it is important to note that there is no explicit right to refuse to execute an EAW on human rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK and the Netherlands, have written a human rights refusal ground into national legislation. If your jurisdiction does not explicitly provide for this, then there may still be human rights arguments that can be put forward in EAW cases based on the provisions above and the rights enshrined in the ECHR.

There is more information about ECHR based challenges to surrender, including on Article 3, 6, and 8 grounds, at subsequent sections of this training module.

Can Member States refuse surrender on additional grounds not provided in the Framework Decision in the interest of protecting fundamental rights in accordance with domestic constitutional law?

The Framework Decision is intended to harmonise procedures for surrendering individuals, not to set minimum standards. In the case of Melloni,[1] the Court of Justice of the European Union (‘CJEU’) was asked in a case where the requested person had been tried in absentia, whether or not the executing state could make the surrender conditional on the availability of re-trial in the issuing state. The CJEU held that Article 4a(1) of the Framework Decision did not contain provisions that enabled executing states to seek assurances on re-trials, and that the requesting states could not impose additional protections when implementing the Framework Decision to reflect domestic constitutional law. There is further discussion about the Melloni case at a later section in this training module.

Can an EAW be refused because the circumstances of the case make surrender disproportionate?

There is no explicit requirement in the EAW Framework Decision that a state applies a proportionality test when issuing an EAW and no refusal ground that allows an executing Member State to refuse to execute an EAW on these grounds. This may be an issue where, for example, the offence in question is minor, the person requested is in ill-health or a great deal of time has passed since the offence was committed.

However, proportionality is a general principle of EU law and the European Commission has stated that states should apply a proportionality test before issuing an EAW. It is therefore worth bearing in mind as a possible argument against surrender when working on EAW cases.

If the Member State orders execution of the EAW is there anything else you can do to prevent surrender?

It may be possible to appeal the final surrender decision. This possibility, as well as conditions and procedures attached to it, will vary in accordance with national law. For example, under UK law, there used to be an automatic right of appeal against surrender. However, this was amended by the Antisocial Behaviour, Crime, and Policing Act 2014, and appellants must now obtain leave to appeal.

If your case raises human rights arguments, you may also be able to obtain relief from the European Court of Human Rights under the ECHR. In particular, you may be able to seek interim relief under Rule 39, which requires the extradition proceedings to be halted until the Court has ruled on any potential breaches of the Convention they may cause.

What happens if there are multiple requests for the same person?

Where two or more Member States have issued an EAW for the same person, the competent judicial authority in the executing Member State must decide which to execute. When making this decision, the judicial authority should take all the relevant circumstances into account, especially the relative seriousness and location of the offences, the dates of the EAWs and whether the EAW is issued for the purpose of prosecution or for execution of a custodial sentence (Article 16(1)).

If a Member State has issued an EAW which conflicts with a request presented by a non-EU country, the competent judicial authority must make a decision as to which request takes precedence. This decision must involve a consideration of all relevant circumstances as described above and any circumstances mentioned in the applicable convention with the third country.

What happens if the requested person is wanted to stand trial for a criminal offence in the executing state?

The executing authority may postpone the surrender of the requested person so that he or she can be prosecuted in the executing Member State (or, if sentencing has already taken place, so that he or she can serve the sentence). Alternatively, the executive judicial authority may surrender the requested person under conditions to be determined by mutual agreement (for example that the person be returned following the conclusion of proceedings and having served his or her sentence in the issuing state).

[1] Stefano Melloni v. Ministerio FiscalCase C-399/11

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