Introduction

• Author: Ballegooij, Wouter van
• Pages: 1-9

European Arre st Warrant

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1. Introduction

1.1. European Arrest Warrant in contex t

1.1.1. Situation before the adoption of the Framework Decision on the

European Arrest Warrant (FD EAW)

Before the adoption of the FD EAW, EU action and cooperation in the area of extradition took place

within the wider framework at United Nations (UN) and Council of Europe (CoE) level, including the

European Convention on Extradition (ECE).1 Extr adition pr ocedures were howev er tra ditionally slow

and thwarted by conditions and exceptions based on national sovereignty, including the non-

extra ditio n of own nationals (nationality exception), in cases where the criminal acts wou ld not be

punishable under the country's own jurisdiction (double criminality requirement) or in cases where

the criminal acts could be perceived as political offences. Other grounds for refus al, developed in

the case law of th e European Court of Human Rights (ECtHR) existed in cases where extradition

migh t have res ulted in a flagrant breach of the European Convention on HumanRights,2 without an

effective remedy in t he requesting State.3 Attempts to constrain the grounds for refusal4 had limited

succes s. A num ber of Member St ates did agree to s implify extradition procedures between them in

the 1990 Schengen Conven tion Implementation Agreement.5 Following the entry into force of the

Maas tricht T reaty, in 1995 a conven tion on simplifie d ext raditio n procedur es was agreed upon

among Member States, 6 followed by an EU extradition convention in 1996,7 which howev er st ill

main taine d optio ns for res ervations.

Since the entry into force of the Treaty of Amsterdam in 1999, the EU has been aiming to develop

into a n area of fr eedom, security and justice (AFSJ) without internal frontiers. The E u ro pe a n C ou n cil,

in its conclusions ado pted that same y ear, agreed to fo und Member States ' cooperation on the

princip le of mut ual re cognit ion of jud icial decisio ns ( since co dified in Ar ticles 67(3) a nd 82(1) TF EU),

together with the necessary approximation of legislation and based on the presumption that

Membe r Stat es comply with fun damental rig hts. This would imply a simple trans fer o f sentenced

people and fast track extradition procedures for people wanted for prosecution in another Member

State.8 However, throughout this study it s hould be kept in mind that there were at least f our

different (and to a certain extent competing) approaches towards the concept of mutual

recog nition among the Comm ission and the 12 Member States an d that endorsed it at the time: 9

1 European Convention on Extradition, Paris, 13 December 1957, ETS No 073.

2 Convention for the Protecti on of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, consolidated.

3 ECtHR, Case No 1/1889/161/217, Soeri ng v UK, 26 June 1989.

4 e.g. First Additional Protocol to the ECE, ET No 86 ; CoE Convention on the Suppression of Ter rorism, ETS No 90.

5 The Schengen acquis – Convention impl ementing the Sche ngen Agree ment of 14 June 1 985 bet ween the

government s of t he State s of the Bene lux Economic Union, t he Federal Republic of Germany and the French Republic

on the gradual abolition of checks at their common borders, OJ L 239, 22 September 2000, pp. 19 -62.

6 Council Act of 10 March 1995, adopted on the basis of Article K.3 of the Treaty on European Union, drawing up the

Convention on simplified extradition procedure between the Member States of the European Union, OJ (C78)1 of

10 March 1995.

7 Convention drawn up on the basis of A rticl e K.3 of the Treaty on European Uni on, re lating to e xtradit ion betwe en the

Member States of the European Union, OJ C 313/12 of 23 October 1996.

8 Presi dency Conclusions-Tampere European Council, 15-16 October 1999, Bul. 10/1999, points 33-35.

9 More extensively, see W. van Ball egooij, The nature of mutual re cognition in Europe an Law, r e-examining the notion

from an i ndividual rights per spect ive with a view to it s furthe r devel opment in the cri minal justice area, Int ersentia,

Antwerpen, 2015, chapter 3.2. (historical development of judicial cooperation in criminal matters in the EU)