I would like to help today and donate

Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
CLOSE

Unit 4 – Dual Representation in EAW Cases

Unit 4 – Dual Representation in EAW Cases

editor - March 25, 2018

There are provisions in the Directive which aim to facilitate access to lawyers in European Arrest Warrant (‘EAW’) proceedings. You can find out more about the EAW on our ‘Cross-Border Cases and Human Rights’ module.

‘Dual representation’ refers to an arrangement under which an individual subject to an EAW has legal assistance from lawyers both in the issuing state (the state that is requesting the transfer of the individual pursuant to the EAW) and in the executing state (the state from which the individual is facing transfer).


Benefits of Dual-Representation

Dual representation could be helpful for an individual subject to an EAW for various reasons, including the following:

  • The lawyer in the issuing state might be able to provide information about the prosecution’s case that is of relevance to the EAW proceedings;
  • The lawyer in the issuing state might be able to provide information about the criminal justice system and the laws of the issuing state that helps the requested person to challenge his/her surrender. This could, for example, include information about prison conditions that forms the basis of Article 3 ECHR based challenges, and advice on local legal provisions that affects the requested person’s right to a fair trial under Article 6 ECHR;
  • On certain occasions, lawyers in the issuing state have also been able advocate for the withdrawal of the EAW, and/or by facilitating alternatives to the EAW, such as voluntary transfer;
  • The lawyer in the issuing state might be able to advise on the likely impact of the requested person’s EAW proceedings on his/her criminal proceedings. It may, for example, be worth seeking advice on whether or not the requested person’s decision to resist surrender will have any impact on his/her final sentence, and about how it might affect decisions relating to pre-trial detention; and
  • Given that EAWs can be very difficult to resist, it could be beneficial for the individual subject to an EAW to be given access to legal representation in the issuing state as soon as possible, in order to give the lawyer as much time to prepare his/her substantive case. Depending on the jurisdiction, early access to legal representation could also enable the requested person to make the most of any plea-bargaining mechanisms or other alternative legal procedures, which might help him/her secure the best possible outcome in his case.

Examples

The benefits of dual-representation in EAW proceedings have been illustrated in a number of cases highlighted by Fair Trials, including the following:

Alan Hickey: Alan was arrested in France on charges of human trafficking and was sentenced to serve 18 months in prison. While incarcerated in France, Alan discovered that an EAW had been issued against him by Belgium. Alan was concerned that the charges in Belgium related to the same charges for which he was currently imprisoned in France. This should have prevented his surrender on the grounds of “double jeopardy”. However, Alan was nonetheless surrendered from France to Belgium, where he had no legal representation. At Alan’s trial in Belgium, it became apparent that some of his charges arose from the same offences for which he had already been sentenced in France. Alan pleaded guilty to the remaining offences and was sentenced to one year of imprisonment, but the majority of his sentence was suspended. If Alan had been provided effective and timely legal assistance in both France and Belgium from the outset of his case, his surrender, which breached the double jeopardy rule, could have been avoided.

Natalia Gorczowska: Natalia was a young mother of a one year-old child, who was subject to an EAW issued by Poland on the basis of a minor drug offence she had committed as a teenager, for which she was given a 10-month suspended sentence. Natalia’s surrender could have meant that her baby would have been taken into care, but she could not resist her surrender on this ground. However, Natalia’s lawyer in Poland managed to persuade local courts to drop their request to have Natalia surrendered, and the EAW was subsequently withdrawn.


The right to dual-representation under the Directive

It is often difficult to ensure that an individual subject to an EAW has access to legal representation both in the issuing state, and in the executing state. This is particularly so if neither the requested individual nor the extradition lawyer has much knowledge or experience in the issuing state.

Under Article 10(4) of Directive, the competent authority of an executing state is required, without undue delay, to inform an individual arrested pursuant to an EAW of their right to appoint a lawyer in both the issuing and executing state. If the requested individual chooses to exercise his/her right to legal representation in the issuing state, the competent authority of the executing state has to liaise with their counterparts in the issuing state, which must then provide the requested person necessary information to facilitate their access to a lawyer.

The purpose of the lawyer in the issuing state has been defined to be  “to assist the lawyer in the executing Member state by providing that lawyer with information and advice with a view to the effective exercise of the rights of requested persons” under the EAW Framework Decision. As explained in Recital 45 of the Access to a Lawyer Directive, the competent authorities of the issuing state might be able to fulfil their obligation to facilitate access to a lawyer by, for example, providing a list of lawyers, or the name of a lawyer on duty in the issuing state. It is not certain whether the obligation of the issuing state will be triggered if the issuing state is bound by Directive, but the executing state (e.g. the United Kingdom) is not.


Legal Aid

There are no provisions in the Access to a Lawyer Directive regarding legal aid, which was expressly left as a matter of domestic law and policy, according to Recital 48. However, the Directive on Legal Aid, which was agreed recently (as of July 2016), obliges both issuing and executing states to make legal aid available for individuals subject to an EAW. Under the Legal Aid Directive:

  • Issuing states are only required to provide legal aid if the EAW is a ‘prosecution’ warrant, which means that individuals subject to a ‘conviction’ warrant (i.e. if they have already been convicted and sentenced in the issuing state), are not entitled to legal aid under this Directive;
  • Legal aid should be granted in the issuing state ‘insofar as such aid is necessary to ensure effective access to justice’ (Article 5(2). Note that the wording of this test is different from Article 10 of the Access to a Lawyer Directive, under which the role of the issuing state is to provide assistance ‘with a view to effective exercise of the rights of requested persons’ in EAW proceedings. This seems to imply that the Legal Aid Directive puts in place an additional test for legal aid for individuals subject to EAW proceedings as requested persons; and
  • Member States are able to introduce a means test for determining eligibility for legal aid.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

Keep up to date

Receive updates on our work and news about Fair Trials globally

Activities in the following sections on this website are supported by the Justice Programme of the European Union: Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides and Latest News. More information about our financial supporters is available here.