Key issues and challenges in the implementation of the FD EAW

• Author: Ballegooij, Wouter van
• Pages: 9-42

European Arre st Warrant

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prosecutors, defence lawyers), acad emics and NGO represen tatives (Fair Trials Interna tion al).

Further details on th e met hod olog y is provided at the beginning of chapte r 3.

Struc tur e

This study is divided into fo ur sections: the introductory section presents the EAW in context

(Section 1.1) and gives a brief overview of the FD EAW state of play (Section 1.1.3), followed by

over view o f t he ins tit utio nal po sit ions (Section 1.1.4). The s cope, objectives, methodology and

structure are covered in Section 1.2. Following this introduction, the s econd chapter of the

publication covers selected aspects of the imp lementat ion of the FD EAW from the per spectives

of the issuan ce of EAWs in Member Stat es (Section 2.1), challenges faced in the execution of EAWs

in the Member States (Section 2.2) and the impact of EAWs on the rights of individuals in the

Member States (Section 2.3). Building on the s econd chapter, the third chapter then draws

conclu sions a s regards to the implementation of the EAW in the Member States following the

evalu ation cr iteria: effectiveness (Section 3.1), com pliance with EU valu es includ ing fund amental

righ ts (S ection 3.2) efficiency (Section 3.3.), coheren ce (Section 3.4), relevance (Section 3.5.) and EU

added value (Section 3.6.). Finally, the fourth chapter presents a number of recomm endations as t o

how to address the shortcomings identified.

2. Key issues and challenges in the implementation of the FD

EAW

2.1. Challenges faced in the issuance of EAWs in Member State

In A rticle 1(1) of the Framewo rk Decisio n an EA W is des cribed as 'a ju dicial decision is sued by a

Member Stat e with a view to the ar rest and sur render by another Member St ate of a requ ested

person for the purpose of conducting a crim inal prosecu tion or executin g a custod ial sentence or

detention o rder'. In accordance with Article 1(2) FD EAW, judicial authorities need to 'execute any

European arrest warrant on the basis of the principle of mutual recognition’ and 'in a ccordanc e with

the prov ision s of this Fra mework Decisio n'. Finally, Art icle 1(3) declar es t hat 'th is Framework

Decision shall not have the effect of modifying the obligation to respect fundamental rights and

fundamental legal principles as enshrined in Article6 of the Treaty on European Union'.

More s pecifically , in accor dance wit h Ar ticle 2(1) F D EA W an E AW may be iss ued for:

[criminal prosecution o f] acts punishable by the law of the issuing Member State by a

custodial sen tence or a det ention order for a maximum period of at least 12 months; or

for [the execution of] sentences o f at least fou r months.

In accordance with article 8 (1) of the FD EAW, the EAW form shall contain the information regarding

the identity and nationality of the requested person; contact de tails of t he iss uing jud icial aut hority;

evidence of an enfor ceable judgment (in case the EAW is issued for the execution of a sen tence) and

an arr est warra nt or any other enforceable judicial decision having the s ame effect (in case the EAW

is issued for prosecution). Furthermore, the nature and legal classification of the offence sho u ld be

indicated as well as a description of the circumstances in which the offence was committed,

including the time, place and degree of participation in th e offence by the requested person; the

penalty impos ed, if there is a final judgm ent or the pres cribed scale of penalties for the offence

unde r th e law of t he issuing Member State; an d if poss ible, other consequences of the offen ce.

EPRS | European Parli amentary Re search Servic e

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When the locat ion of the requ ested person is k nown , the iss uing judicia l auth ority ma y tran smit the

European Arrest Warra nt directly to the exe cuting judicial a uthor ity.64 In most cases ho we ver, the

person’s location is unknown or uncertain and the EAW should be transmitted to all Member States

via t he Schengen information system. Even when the person’s location is known, the issuing judicial

author ity may d ecide to issue an a lert.65 Th e SIS alert ena bles the police au thorities in t he Member

States to be aware that the person is wanted for arrest. T he rules and procedures for Member States’

cooperatio n concerning alerts for arrest based on EA Ws are set out in th e SIS II Decision 66 and

SIRENE (Supplementary Information Request at the National Entries) manual.67 The st eps fo r is suing

an EAW are outlined in figur e 3 below.

Figure 3: Issuing an EAW-main steps

Source: European Comm ission, Handbook on how to issue and exec ute a European A rrest Warrant.

As will be discussed below, 18 yea rs after the text of the FD EAW was drafted, the CJEU is still

providing guidance on how to interpret the key notion of an independent 'judicial authority' and

under which conditions prosecutors can be considered as such. Furthermore, there is no common

definition of the notion of 'criminal prosecution', leading to concerns that surrender is requested

prematu rely. The CJEU has interpr eted the principle of mutual recognition as meaning that 'the

64 Article 9(1) FD EAW.

65 Article 9(2) FD EAW ; European Commission, Handbook on how to issue and exe cute a Europe an Arr est Warrant,

section 3.3.

66 OJ L 205, 7.8.2007, p. 63, article 24-31.

67 Commission Implementing Decision (EU) 2016/1209 of 12 July 2016 replacing the Annex to Commission

Impleme nting Decision 2 013/ 115/ EU on the SIRENE M anual and other imple menting me asures for the sec ond-

gener ation Schengen I nformation System (SIS I I), OJ L 203, 28.7.2016, p. 35.

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Member Stat es are in principle obliged to g ive effect to a Euro pean Arrest Warrant'.68 However, the

second part of Article 1(2) and ' in accordan ce with the p rovisions o f this Fram ework decis ion' already

indicates that this instrument contains exceptions and conditions to be met before a person may be

surrendered. One of the exceptions tha t may be imposed is dou ble crim inalit y (which will be

discussed in section 2.2.2).

In any event, reflecting the different positions by the Member States at the time of the adoption of

the Tamper e conclusions in 1999,69 academic views diverge widely on the qu estion of the degree to

which the app lication of mu tual r ecogn ition is app ropr iate in the a rea o f cr iminal law (as opposed

to the internal market) given the implications for national sovereignty and fu nd ame ntal r ig hts and

the extent to which it needs to be balanced by harmonisation of procedural standards and

sub stant ive crim inal law.70 The dilemma ha s been described as a need t o avoid as far as possible

double check s a nd cont ro ls, but also blind t rus t and the ' dere sponsibilisation ' of com petent

executin g au thor ities .71 This is part icularly relevant for cases in which ther e are concerns regarding

the fundamental rights situation in the issuing Member State, which will be discussed in section

2.2.6, as CJE U case law has no w estab lished de facto grounds for non-execution based on primary

EU law. The is sues high lighte d below will b e furt her discu ssed in th e sect ion belo w.

2.1.1. The defin ition of issuing judicial a uthorities

In Article 1(1) of the Fr amework Decisio n an EAW is descr ibed as ' a judicia l decision ' for t he purposes

of conducting a ' criminal prosecution'. However, the lack of clarity offered by t he FD EAW as regards

the interpr etation of these concepts has led t o various problems in national implementat ion and

practice, part icularly when surrender was req uested by a prosecutor.72

The CJEU has since clarified that the concept of 'judicial authority' (Article 6(1) FD EAW) may extend,

mor e bro adly, to t he aut hor ities req uired to pa rticipat e in adm inist ering justice in the legal system

concerned, but it excludes the po lice73 or an organ of the executive74 o f the Member State. In a

number o f more recent cas es the CJEU explored th e conditions for pros ecutors to be able t o issue

EAWs, notably the need for their independence from th e executive.75 This en tails the existence of

'statutory rules and an institutional framework capable of guaranteeing that the issuing judicial

authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of

being subject, inter alia, to an ins truction in a s pecific case fr om the executive. Moreover, the

framework must enable prosecutors to assess the necessity and proportionality of issuing an EAW'.76

In this context, the CJEU has clarified that in order to afford effective judicial protection, the EAW

system entails a dual level of protection of procedural rights and fundamental rights which must be

enjoyed by t he requested person. In addition to the judicial protection provided at the first level, at

68 CJEU of 16 July 2015, Case C-237/15, P PU, Lanigan, para. 3 6.

69 Supra section 1.1.2.

70 For a discu ssion se e W. van Ball egoo ij, Th e Natu re of Mutual recognition in European Law: Re-examining the notion from

an invidividual rights perspective with a view to its further development in the criminal justice area, Intersentia, 2015,

Chapte r 3, Section 3.

71 A. Weyembergh, 'Transverse Report on Judicial Control in Cooperation in Criminal Matters. The Evolution from

Traditional Judicial Cooperation to Mutual Recognition', in K. Ligeti (Ed.), Toward a Prosecutor for the European Union,

A Comparative Analysis (Volume 1), Hart Publishing, 2013, pp. 945-985 at p. 972.

72 UK Supreme Court judgment of 30 May 2012 in Assange v Swed ish P rose cuti on Au thori ty, UKSC 22.

73 CJEU judgment of 10 November 2016, Case C-452/16 PPU, Poltorak, par as 34-52.

74 CJEU judgment of 10 November 2016, Case C-477/16 PPU, Kovalkovas, paras 28 -48.

75 CJEU judgment of 27 May 2019, Joined cases C-508/18 OG and C-82/19 PI PPU.

76 Ibidem, paras 51 and 74. CJEU of 12 December 2019, Case C-625/19 PPU, XD, para. 40; CJEU judgment of 12 December

2019, Joined cases C-566/19 PPU YR and C-626/19 PPU YC, para. 52.