Defence rights of persons arrested on an eaw

• Author: European Union Agency for Fundamental Rights (EU body or agency)
• Pages: 59-68

59

4

Defence rights of persons

arrested on an EAW

This chapter analyse s to what extent perso ns who are

subject to an EAW enjoy th eir procedural right s. With

the adoption of the E AW Framework Decision, the EU

replaced the traditional system of extradition and intro-

duced the expedited surrender of people sought.

104

The

main features of the procedure a re the non-involvement

of the executive in the ex tradition regim e, the judicial

104 Council Framework Decis ion 2002/584/JHA of 13 Jun e2002

on the Europea n arrest warrant and th e surrender

procedures be tween Member States – Sta tements made by

certain Mem ber States on the adopt ion of the Framework

Decision, OJ 2 002 L 190, 18 July 2002.

character of the proced ure, the possibilit y of consenting

to surrender to the issuin g Member State, the surren der

of a Member State’s own nationals an d the abolition of

double crimin ality for a list of crimes.

105

All of the Member

States in which interv iews were held had implemented

105 For a short descript ion of its mechanis m, see also the

European e-Justice Portal and, for more detailed information,

see European Co mmission (2017), Handbo ok on how to issue

and execute a Euro pean Arrest Warrant, C(2017) 6389 f‌in al,

Brussels, 28 S eptember 2017; and Euro just (2018), Case Law

by the Court of Just ice of the European Union o n the European

Arrest Warrant, October 2018 (updat ed 15 November 2018).

nThe provision of informati on on the possibilit y of consenting to ‘surrender’ – transfer to another EU M ember

State – is a problem specif‌ic to E AW cases. Several responde nts say they did not und erstand the meani ng

of giving such consent , which led them to make deci sions contrary to thei r interests. For exa mple, some

believed that they would s tay in the country of thei r arrest, or that they wou ld be allowed to return to the

issuing country on t heir own.

nGiven the cross-border natu re of EAW cases, language barriers f requently impede the effe ctive enjoyment of de-

fendants’ right to be i nformed, including about the ri ght to a lawyer. This is exacerbated when national auth ori-

ties do not verify that a d efendant understands th e information provided, parti cularly when no lawyer is present .

nOverall, executing M ember States respect t he right to be assisted and rep resented by a lawyer in surrend er

proceedings under a n EAW. However, the challenges referred to in domes tic proceedings app ly equally to

surrender proceedings in the executing Member States.

nWith regard to providing defe ndants with inform ation about their right to also access a lawyer in th e issuing

Member State, as well as the ef fective access to a lawyer in pra ctice, the f‌indings reveal a s ystemic def‌i-

ciency. Executing aut horities genera lly do not feel competent to comm ent on rights in othe r countries, so

do not inform persons a rrested under an E AW of their right to contact and a ppoint a lawyer in th e issuing

Member State and/or do not suff‌i ciently assist defendants in appoi nting a lawyer there. In practice, relatives

of defendants and/or lawyers i n executing Member States often f‌ill th is gap by resorting to their own private

contacts, incl uding through different professional ass ociations, hence facilitating defenda nts’ access to legal

representation in the issuing Member State.

KEY FINDINGS