European Implementation Assessment 2004-2020 on the European Arrest Warrant

• Date: 16 July 2020
• Year: 2020
• Author: Dr. Wouter Van Ballegooij
• Pages: 87
• DOI: https://doi.org/10.30709/eucrim-2020-013

I. Introduction

The Framework Decision on the European Arrest Warrant (FD EAW)¹ is the most well-known tool for judicial cooperation within the EU. The product of rapid negotiations after the 9/11 terrorist attacks on New York and Washington, it has been in force since 2004. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) is currently drawing up an own-initiative implementation report on the FD EAW (2019/2207(INI), rapporteur: MEP Javier Zarzalejos, EPP, Spain). A European Implementation Assessment² authored by me for the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and European Added Value, Directorate-General for Parliamentary Research Services (EPRS), supports the implementation report by providing an assessment and conclusions on the implementation of the Framework Decision. It also contains recommendations on how to address the shortcomings identified, as per the request of the rapporteur.

The study concludes that the FD EAW has simplified and sped up handover procedures, including for some high-profile cases of serious crime and terrorism. In 2018, the average time between the arrest and surrender of people who did not consent to surrender was 45 days, a remarkable reduction compared to the lengthy pre-existing extradition regime.³ A number of challenges in the issuance and execution of EAWs remain. Those challenges related back to core debates concerning judicial independence, the nature of mutual recognition⁴ and its relationship with international and EU law and values, constitutional principles⁵ and additional harmonisation measures.⁶ The second section of this article will explore those challenges in more detail. Furthermore, there are gaps in effectiveness, efficiency and coherence with other measures and the application of digital tools. Those gaps will be further discussed in the third section. Finally, as will be detailed further in the fourth section, the study recommends targeted infringement proceedings, support to judicial authorities and hearing suspects via video-link where appropriate to avoid surrender whilst ensuring the effective exercise of defence rights, as well as a range of measures aimed at achieving human treatment of prisoners. In the medium term, it recommends a review of the FD EAW as part of an EU judicial cooperation code in criminal matters for reasons of legitimacy, legal certainty and coherence.

II. Challenges in the Issuance and Execution of the European Arrest Warrant

Chapter 2 of the study identifies challenges in the issuance and execution of EAWs concerning the following matters:

• The definition of issuing judicial authorities and their independence from government, which excludes police officers⁷ and organs of the executive,⁸ but can include public prosecutors in accordance with certain conditions;⁹

• The proportionality of a number of EAWs issued for “minor crimes” and before the case was “trial ready”, also in view of other possible judicial cooperation measures, where the European Parliament’s call for legislative reform¹⁰ has been answered through guidelines in a Commission Handbook;¹¹

• The situation pending the hearing by the executing judicial authority, such as possibilities offered for hearing by the issuing judicial authorities via video-link prior to surrender¹² and the time limits to be respected;¹³

• The verification of double criminality by executing judicial authorities,¹⁴ leading to a lively academic debate on the compatibility of this requirement with the principle of mutual recognition¹⁵ and potential further questions to be raised with the CJEU;¹⁶ and the lack of approximation of certain offences for which verification is no longer allowed;¹⁷

• EAWs for nationals and residents of the executing Member State¹⁸ and their interplay with the framework decision on the transfer of prisoners¹⁹ with the dual aim of social rehabilitation and the prevention of impunity;

• EAWs issued in cases concerning final judgments for the same acts, where the sentence has been served, or is currently being served, or can no longer be executed (ne bis in idem)²⁰ and the larger issue of the prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings;²¹

• EAWs based on decisions following proceedings at which the person concerned was not present (in absentia)²² raising practical problems caused by non-implementation, differences concerning implementation, or incorrect implementation of the framework decision on in absentia decisions;²³

• The role of the executing judicial authority in safeguarding the fundamental rights of the requested person as developed in the CJEU’s case law, both regarding EAWs where there are concerns relating to poor detention conditions²⁴ and broader concerns relating to the right to a fair trial, including an independent and impartial tribunal;²⁵ and

• The relationship with third states generally based on CJEU case law,²⁶ in accordance with treaties between the EU and the third states concerned (Norway, Iceland)²⁷ and those that might result from negotiations with the UK.²⁸

Finally, requested persons have also faced difficulties in effectively exercising their procedural rights in the issuing and executing Member State based on the FD EAW itself²⁹ and specific provisions relating to the EAW and various directives approximating the rights of suspected and accused persons within the EU.³⁰

III. Implementation Gaps

Chapter 3 of the study draws conclusions regarding the implementation of the FD EAW. This has been done by applying the following evaluation criteria as set out in the European Commission’s better regulation toolbox:³¹

• Effectiveness;

• Efficiency;

• Coherence;

• Relevance;

• EU added value;

• Compliance with EU values including fundamental rights.

On this basis, semi-structured interviews were held with a wide range of stakeholders. In terms of effectiveness, the study concludes, as mentioned, that the FD EAW has achieved the objective of speeding up and simplifying surrender procedures. However, in practice, the executive is still called in to assist judicial authorities and practical cooperation based on the EAW form does not always run smoothly. Court of Justice (CJEU) case law, through offering more clarity on a number of aspects left open by the generic drafting of the FD EAW, has also led to further practical questions. Finally, the rights of the defence may have been compromised due to the shortening of appeal possibilities.³²

The objective of limiting the grounds for refusal based on the verification of double criminality seems to have been achieved overall. However, there are remaining uncertainties as regards the scope of the test to be applied in situations where such verification is still allowed. The limitation of the nationality exception has also been successful. Still, in cases relating to nationals and residents of the executing Member State, it is found that issuing judicial authorities do not sufficiently focus on the perspectives of social rehabilitation, before issuing an EAW. The decision of certain Member States to no longer surrender their nationals to the UK during the transition period³³ demonstrates the enduring sensitivities. CJEU case law has reinforced control by (independent) judicial authorities in the issuing and executing Member State. At the same time, there are concerns regarding the degree in which this case law results in effective judicial protection of requested persons.³⁴

EU action to monitor and uphold EU values has not led to a swift and effective resolution of threats to the rule of law in certain Member States. CJEU case law, which requires the executing judicial authorities to assess potential violations of fair trial rights in the issuing Member State on a case-by-case basis, has led to different outcomes regarding EAWs issued by the same Member State,³⁵ also revealing a different appreciation of the relationship between (constitutional) values and mutual recognition.³⁶ Furthermore, CJEU case law puts the spotlight on the need to provide national courts with proper human and financial resources. They also need access to (centralised) knowledge on the criminal justice systems (including EAW decisions) and safeguards for compliance with EU values in the other Member States.

Detention conditions may be easier to assess than compliance with EU values more generally, especially if the resources of the Fundamental Rights Agency (FRA, criminal detention database³⁷) and Eurojust³⁸ and other relevant information from the ground are relied upon in the process. Nevertheless, there is no mechanism in place to ensure a proper follow-up to assurances provided by issuing judicial authorities after surrender.³⁹ Much is to be gained through further intensifying cooperation and funding to international prison monitoring bodies and making sure their reports are properly followed up by EU Member States. Furthermore, a lot is expected of EU funding to modernise detention facilities in the Member States and to support them in addressing the problem of deficient detention conditions. However, this should go hand-in-hand with domestic criminal justice reforms.

EU legislation in the area of detention conditions could have added value.⁴⁰ However, the impact would depend on the scope of such legislation (only addressing procedural requirements in terms of reasoning for pre-trial detention and regular reviews, or also material detention conditions), the level of harmonisation chosen⁴¹ and its ultimate implementation.

In terms of efficiency, it is reported that the majority of Member States have put mechanisms in place in their domestic systems for ensuring that EAWs are not issued for minor offences. This has resulted in the impression that there is a decrease of EAWs issued for “minor crimes”. At the same time, there are still some cases where a suspect appears to be wanted for questioning, rather than prosecution. Here...