The European Arrest Warrant and the Sovereign State: A Marriage of Convenience?

• DOI: http://doi.org/10.1111/j.1468-0386.2008.00451.x
• Published date: 01 January 2009
• Date: 01 January 2009

The European Arrest Warrant and the

Sovereign State: A Marriage of

Convenience?

Massimo Fichera*

Abstract: The article aims to analyse the extent to which mutual recognition and mutual

trust in the criminal law area are developing in the EU in the context of the implementa-

tion of the European Arrest Warrant (EAW). First, an overview of the decisions of the

Constitutional Courts in Germany, Poland, Cyprus and Czech Republic will be given.

These decisions are evidence of a tension, on the one hand, between mutual recognition and

state sovereignty and, on the other hand, between the powers of the European institutions

in criminal matters and the fundamental rights of the individual. Second, national case-law

in the UK, Belgium, Spain and Italy will be examined. Third, an analysis of the recent

decision of the European Court of Justice of 3 May 2007 will be carried out. Finally, a

global assessment of the EAW will be made. Is this instrument effectively promoting

normative mutual trust among the judicial authorities in the EU? Should it be amended or

is it the wrong response at the wrong time? Some suggestions will be put forward, in light

of what is considered to be the nature of the EAW and the birth of this instrument as part

of the mutual recognition agenda.

Introduction

Recital 10 of the Preamble of the Framework Decision on the European Arrest

Warrant (EAW)1states that:

the mechanism of the European Arrest Warrant is based on a high level of conf‌idence between Member

States. Its implementation may be suspended only in the event of a serious and persistent breach by one

of the Member States of the principles set out in Article 6(1) of the Treaty on European Union,

determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in

Article 7(2) thereof.

* University of Edinburgh, School of Law. Earlier versions of this article were presented at the Third

CHALLENGE Training School on ‘Police and Judicial Cooperation in Criminal Matters in the EU:

Which Future for EU’s Third Pillar?’ organised by CEPS in Brussels on 13 April 2007 and at the Summer

School on European Law and Governance organised by the University College Dublin in Dublin on

19–20 July 2007. While taking all the responsibility for errors or omissions, the author would like to thank

the participants at those seminars, the anonymous reviewers as well as Prof Bill Gilmore and Prof Mar

Jimeno-Bulnes for their valuable comments and suggestions.

1Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender

procedure between Member States 2002/584/JHA (the Framework Decision).

European Law Journal, Vol. 15, No. 1, January 2009, pp. 70–97.

© 2009 The Author

Journal compilation © 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The purpose of this article is to analyse some of the main features of the EAW and

assess its level of implementation in order to verify the extent to which the statement

mentioned above is true, if that represents a target or a reality in the EU and what

could be done to improve the surrender procedure. The f‌irst section will consider the

creation of the EAW and its relationship with mutual recognition in criminal matters

and harmonisation. The second section will look in more detail at these two concepts,

also in light of the new provisions in the Lisbon Treaty. The third section will

examine some of the most relevant aspects of the new surrender procedure as

opposed to the traditional extradition model and will suggest restricting the applica-

tion of double criminality to a few core categories of offences. The fourth section will

describe the main problems connected to the implementation, with reference to the

decisions of the constitutional courts in some Member States, the recent decision of

the Court of Justice and national case-law. Finally, a conclusion will be drawn on the

EAW as a whole and its relationship with state sovereignty and some possible

changes will be suggested.

I The Emergence of the European Arrest Warrant as an Instrument of

Mutual Recognition

The EAW is a judicial decision by which one Member State (ie the state of issue)

requests from another (ie the state of execution) the arrest and surrender of a person

who is permanently or temporarily in the latter. The reasons for the adoption of this

measure are either the prosecution of the person concerned or the execution of a

custodial sentence or a detention order. It is issued when the person whose return is

sought is accused of an offence for which the law establishes a maximum of at least one

year in prison, or when the person has already been sentenced to a prison term of at

least four months.2

The EAW is regarded as the f‌irst and most important measure in the f‌ield of

European criminal law for the purpose of implementation of the principle of mutual

recognition of judicial decisions and pre-trial orders.3It was introduced in the EU in

2002 following point 35 of the Conclusions of the Tampere European Council of 15–16

October 19994(aimed at abolishing the formal extradition procedure among the

Member States of the EU). It is interesting to examine the political context in which it

was born.

It should be pointed out that, at least at the beginning, the very purpose of the

drafters of the f‌irst documents of the mutual recognition agenda was not clear. In the

2000 Programme on Mutual Recognition,5priority rating 1 was accorded to two

instruments: one on mutual recognition of decisions on the freezing of evidence

and another on mutual recognition of orders to freeze assets; the adoption of an

arrest warrant was only given priority rating 2 and was only limited to the most

serious offences mentioned in Article 29 of the Treaty of European Union (TEU), ie

2ibid, Art 2(1).

3G. De Kerchove and A. Weyembergh (eds), La Reconnaissance Mutuelle des Décisions Judiciaires Pénales

dans l’Union Européenne (Editions ULB, 2001).

4Tampere European Council, Presidency Conclusions (15 and 16 October 1999), available at

http://www.europarl.eu.int/summits/tam_en.htm.

5Programme of measures to implement the principle of mutual recognition of decisions in criminal

matters, adopted by the JHA Council of Ministers on 30 November 2000, [2001] OJ C12/10.

January 2009 The European Arrest Warrant

© 2009 The Author 71

Journal compilation © 2009 Blackwell Publishing Ltd.