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MODULE 8 – THE EUROPEAN ARREST WARRANT AND THE SURRENDER PROCEDURE – VERSION 3.0

The European Judicialtraining network With the support of the European Union

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Training organised by(name of training organiser)

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Based onthe standard training programme in judicial cooperation in criminal

matterswithin the European Union

Module 8THE EUROPEAN ARREST WARRANT AND

THE SURRENDER PROCEDUREVersion: 3.0Last updated: 31.10.2012


PROJECT DESCRIPTION

This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).

The ‘programme’ as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.

The methodological approach of the ‘standard programme’ aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.

This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.

In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the project’s management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to [email protected], quoting Copen Training.

The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.

How to use this document:

The 'standard training programme in judicial cooperation in criminal matters' training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:

1. Its content and layout cannot be altered in any way, except:

- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organiser’s logo, date, place etc.)

- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned

2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:

mailto:[email protected]


- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions

- these additions and amendments must be notified to the project’s development team [email protected], quoting Copen Training.

3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.

WHAT’S NEW IN THIS VERSION?

In particular, this new version (3.0) takes into account:- the ‘Revised version of the European handbook on how to issue a European Arrest Warrant’

(Council of the EU, doc. 17195/1/10 REV 1 of 17 December 2010);- Report on the 4th round of mutual evaluations (Council of the EU, doc. 8302/2/REV 4 of

mailto:[email protected]


28/5/2009) and follow-up to the recommendations (Council of the EU, doc. 8436/2/10 REV 2 of 28/5/2010, and doc. 15815/11 of 28/10/2011);

- the final report from the Commission on the implementation of FD of 13/6/2002 (COM(2011) 175 and SEC(2011) 430)

- the case-law of the Court of Justice of the European Union and of the European Court of Human Rights on the European arrest warrant.

AIMS OF THIS MODULE

Module 8 describes how cooperation during and after sentencing operates, as established by the Framework Decision on the European arrest warrant and surrender procedures.

It looks at the background and general objectives of the new system, the concept of the European arrest warrant, how the European arrest warrant is processed by the issuing authority and by the executing authority, the effects of surrender, how it relates to other legal instruments and the application of the European arrest warrant over time, its transposition and practical implementation, as well as the relevant case-law of the Court of Justice of the European Union. It concludes with some practical tips aimed at issuing and executing authorities, together with selected case studies.

RELEVANT LEGISLATION

- European Convention on Extradition of 13 December 1957 Compendium A.2.1.; its two additional protocols of 15 October 1975 Compendium A.2.2.; and its 2nd additional protocol of 17 March 1978 Compendium A.2.3.

- European Convention on extradition of 10 March 1995 Compendium B.4.1.- European Convention on extradition of 27 September 1996 Compendium B.4.2.- Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and

surrender procedures between Member States Compendium B.4.3. - Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions

2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial Compendium B.5.8.

- FD 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU Compendium B.5.5.


- Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, OJ L 142 of 1/6/2012 Compendium B.6a.1

- Directive 2010/64/EU of 20/10/2010 on the right to interpretation and translation in criminal proceedings OJ L 280 of 26/10/2010 Compendium B. 6a.2.

For further information => see the following websites: the website of the European Judicial Network (click on the tab ‘practical implementation

of mutual recognition instruments’:http://www.ejn-crimjust.europa.eu

the website of Eurojust (for annual reports and their annexes, e.g. guidelines in the case of concurrent EAWs):http://eurojust.europa.eu/about/structure/college/Pages/assistants-national-members.aspx

the website of the Council of the European Union (e.g. for the European handbook on how to issue a European Arrest Warrant):http://www.consilium.europa.eu/applications/PolJu/details.asp?id=66&lang=FR&cmsid=720

the website of the Court of Justice (for case-law):http://curia.europa.eu/jcms/jcms/j_6/ the website of the Council of Europe (for the texts of the conventions and their status of

ratification):http://www.conventions.coe.int/?pg=/treaty/default_en.asp&nd=&lg=fr the website of the European Court of Human Rights (for case-law):http://www.echr.coe.int/echr/

CONTENTS

1. INTRODUCTION: BACKGROUND AND GENERAL OBJECTIVES....................................................................82. DEFINITION OF THE EUROPEAN ARREST WARRANT.............................................................................103. PROCESSING OF THE EUROPEAN ARREST WARRANT BY THE ISSUING AUTHORITY.................................113.1. Acts for which a European arrest warrant can be issued.......................................................113.2. Conditions that must be met by the European arrest warrant................................................123.2.1 Formal requirements................................................................................................................... 123.2.2 Content requirements..................................................................................................................12

http://www.echr.coe.int/echr/

http://www.conventions.coe.int/?pg=/treaty/default_en.asp&nd=&lg=fr

http://www.consilium.europa.eu/applications/PolJu/details.asp?id=66&lang=FR&cmsid=720

http://www.consilium.europa.eu/applications/PolJu/details.asp?id=66&lang=FR&cmsid=720

http://eurojust.europa.eu/about/structure/college/Pages/assistants-national-members.aspx

http://eurojust.europa.eu/about/structure/college/Pages/assistants-national-members.aspx

http://www.ejn-crimjust.europa.eu/


3.2.3 Language requirements.............................................................................................................. 133.2.4 Principle of proportionality as a criterion for issue.......................................................................153.3. Transmission...............................................................................................................................153.3.1 Between whom?..........................................................................................................................153.3.2 How? 163.3.3 When?......................................................................................................................................... 184. PROCESSING OF THE EUROPEAN ARREST WARRANT BY THE EXECUTING AUTHORITY............................204.1. ‘Flagging’: the possibility of blocking execution of the European arrest warrant upon entry of the alert in the SIS.............................................................................................................................204.2. Obligation to arrest and the rights of the person concerned..................................................214.3. Surrender decision..................................................................................................................... 224.3.1 Time limits for the decision to be taken and situation pending the decision................................224.3.2 Cases in which execution may or must be refused.....................................................................234.3.3 Conditional surrender..................................................................................................................294.3.4 Decision in the event of multiple requests...................................................................................314.3.5 Appeals....................................................................................................................................... 314.3.6 Notification of the decision to the issuing authority......................................................................324.4. The surrender itself.....................................................................................................................324.4.1 Time limits................................................................................................................................... 324.4.2 Postponed or conditional surrender............................................................................................325. EFFECTS OF THE SURRENDER.............................................................................................................345.1. Deduction of the period of detention served in the executing Member State (Article 26 of the FD) 345.2. Speciality rule and exceptions (Article 27 of the FD)...............................................................345.3. Surrender or subsequent extradition (Article 28 of the FD)....................................................356. RELATION TO OTHER LEGAL INSTRUMENTS AND THE APPLICATION OF THE EUROPEAN ARREST WARRANT

OVER TIME...................................................................................................................................... 366.1. Relation to other legal instruments (Article 31 of the DC).......................................................366.2. Application of the European arrest warrant over time (Article 32 of the FD).........................377. TRANSPOSITION AND PRACTICAL IMPLEMENTATION.............................................................................407.1. Germany...................................................................................................................................... 417.2. Poland.......................................................................................................................................... 417.3. Cyprus..........................................................................................................................................428. THE CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON THE EUROPEAN ARREST

WARRANT....................................................................................................................................... 438.1. Advocaten voor de wereld case ...............................................................................................438.1.1 Legal background........................................................................................................................438.1.2 Judgment of the Court of Justice.................................................................................................438.2. Szymon Kozlowski case ...........................................................................................................458.2.1 Legal background........................................................................................................................458.2.2 Judgment of the Court of Justice.................................................................................................458.3. Santesteban Goicoechea case ................................................................................................. 468.3.1 Legal background........................................................................................................................468.3.2 Judgment of the Court of Justice.................................................................................................478.4. Leymann and Pustovarov case ................................................................................................ 488.4.1 Legal background........................................................................................................................488.4.2 Judgment of the Court of Justice.................................................................................................488.5 Wolzenburg case........................................................................................................................498.5.1. Legal background......................................................................................................................498.5.2. Judgment of the Court of Justice................................................................................................508.6. I.B. case....................................................................................................................................... 508.6.1 Legal background........................................................................................................................508.6.2 Judgment of the Court of Justice.................................................................................................51


8.7. Mantello case.............................................................................................................................. 528.7.1 Legal background........................................................................................................................528.7.2 Judgment of the Court of Justice.................................................................................................528.8. Melvin West case........................................................................................................................ 538.8.1 Legal background........................................................................................................................538.9. Lopes Da Silva Case...................................................................................................................549. PRACTICAL TIPS.................................................................................................................................569.1. As an executing authority..........................................................................................................569.2. As an issuing authority.............................................................................................................. 5610. CASE STUDIES................................................................................................................................. 58

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1. Introduction: background and general objectives

Remember that the extradition procedure between the Member States of the European Union was initially organised by the conventions adopted within the framework of the Council of Europe, namely the European Convention on Extradition of 13 December 1957 (Compendium A.2.1.) and its two additional protocols of 15 October 1975 ( Compendium A.2.2.) and of 17 March 1978 ( Compendium A.2.3.). Because these conventions were somewhat outmoded and cumbersome, efforts have been made by the Member States to simplify them. The most tangible improvements were introduced by certain provisions of the Convention Implementing the Schengen Agreement (CISA) and by two EU conventions of 1995 and 1996 ( Compendium B.4.1. and Compendium B.4.2.). For more information on this topic, see Module 2.

It was the conclusions of the European Council of Tampere that first conceived of the ‘abolition’ of extradition, but solely for the purposes of enforcing a sentence. According to these conclusions, the formal extradition procedure should be ‘abolished’ among the Member States for persons attempting to flee justice after having been finally sentenced, and replaced by a simple transfer of such persons (paragraph 35). For the remainder, the European Council envisaged a simple acceleration of extradition procedures.

The idea of ‘abolishing’ extradition was subsequently developed, in particular in the programme of measures to implement the principle of mutual recognition, but this time not just with regards to sentencing but to pre-trial arrangements as well (cf. paragraph 3.1.2. of the programme and paragraph 2.2.1 concerning extradition for the purposes of prosecution). A few days after the terrorist attacks of 11 September 2001, the European Commission presented a proposal to that effect. The initiative was negotiated during the Belgian Presidency, and political consensus was rapidly achieved. It was then formally adopted in the form of Framework Decision (‘FD’) 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures1 ( Compendium B.4.3.).

While pursuing the objective laid down in Article 29 of the Treaty on European Union, this Framework Decision is in some ways the culmination of work to simplify extradition between Member States: it replaces existing extradition procedures with a new, faster and simpler system based on the principle of mutual recognition. The Framework Decision of 13 June 2002 was also the first practical application of this principle: the principle of mutual recognition was applied to the ‘European arrest warrant’.

Major changes introduced by this new system included:the ‘judicialisation’ of the procedure. a broadening of the offences for which surrender can take place. a reduction in the conventional grounds for refusing extradition and a relaxation of verifications, based on the idea that substantial verifications should first and foremost be conducted in the issuing State.an acceleration, through the setting of time limits by which the decision on execution of the European arrest warrant and the decision on the surrender of the person requested by the warrant must in principle be taken.

1 OJ L 190 of 18 July 2002, p.1.8/65

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These changes will be studied through an examination of the rules governing the new system.

Indicate here references to your national law transposing the Framework Decision

9/65

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2. Definition of the European Arrest Warrant

The ‘European arrest warrant’ (EAW) is defined as a judicial decision issued by a Member State (‘MS’) with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order (Article 1 of the FD).

There are two key elements to this definition:

Firstly, the fact that it is a judicial decision: this is a core element that reflects the judicialisation of the procedure. In theory, the central authorities, particularly the issuing State’s central authority, no longer perform a role in the procedure. If they do play a role, it must now merely be providing general information and assistance to the judicial authorities. The Framework Decision states that each Member State may designate a central authority or, where prescribed by its legal system, more than one central authority, to assist the competent judicial authorities (Article 7(1) of the Framework Decision). Certain national implementing laws have, however, attributed a greater role to the central authorities they have designated (for example, in Ireland, the central authority verifies that the warrant is correct as to its form and content before transmitting it to the High Court for assessment of recognition and execution).

Indicate here the authorities and their competences in your national law

Furthermore, the fact that the decision covers the arrest and surrender of a person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order means it covers the pre-trial stage and the sentencing stage.

10/65

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3. Processing of the European arrest warrant by the issuing authority

3.1. ACTS FOR WHICH A EUROPEAN ARREST WARRANT CAN BE ISSUED A European arrest warrant may be issued for offences punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months2 or, where a sentence has been passed or a detention order has been made, for sentences of at least four months (Article 2 of the Framework Decision).

Such a rule entails some broadening of the offences for which surrender can take place:in terms of severity of the penalty imposed in the issuing State (according to Article 2 of the 1996 Convention, extradition shall be granted for offences that are punishable under the law of the requesting Member State by deprivation of liberty or a detention order for a maximum period of at least 12 months)because this definition of the scope refers solely to the law of the issuing State, the severity of the penalty in the executing State is immaterial; in other words, the condition set forth in the 1996 convention requiring the offences to be punishable by the law of the requested Member State by a custodial sentence or detention order with a maximum of at least six months has been discarded (see below on the partial abolition of the verification of double criminality).

scope and double criminality are two separate things. Double criminality is discussed in other modules. the Framework Decision did not establish a minimum sentence remaining to be served, but the handbook (see below) recommends not issuing a European Arrest warrant where the remaining sentence is less than 4 months, even if the sentence handed down was 4 months or more. the Framework Decision does not require the issuing authority to assess the European arrest warrant from the perspective of the principle of proportionality, and its legislation does not necessarily allow it a large margin of discretion: this issue is discussed later on.

In order to address the practical problems posed by the process of issuing and executing the European arrest warrant, the Council of the European Union has drafted the ‘European handbook on how to issue a European arrest warrant’. The aim of this Handbook is to provide guidelines with a view to the adoption of good practice based on practical experience to date. It includes an annex containing guidelines ‘on how to fill in the European arrest warrant form’. The handbook was revised in 2010 and is available on the Council of the EU’s website3. In some Member States, this type of handbook has also been adopted at national level.

If this is the case for your country, indicate here the references from your national handbook.

2 Austrian law has concurrent requirements for EAWs issued for the purposes of executing a sentence (see evaluation report: Council doc. 7024/08 of 28 February 2008, p. 37).3 Council doc. 17195/1/10 REV 1, 17 December 2010 (p.60)

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3.2. CONDITIONS THAT MUST BE MET BY THE EUROPEAN ARREST WARRANT The European arrest warrant must meet a series of conditions as to its form, content and language.

3.2.1 Formal requirements

The European arrest warrant – and the information it must contain – must be submitted in the form attached as an annex to the Framework Decision. The form may not be modified, or any of its parts deleted. If a box is not relevant, ‘not applicable’ should be written, rather than deleting it (cf. ‘Guidelines on how to fill in the European arrest warrant form’, annexed to the European handbook on how to issue a European arrest warrant4).

Indicate here how to obtain the electronic version of the form. If this form is not available at national level, pursuant to Article 8 of the Framework Decision, the forms are available in all languages from the website of the European Judicial Network. The form can be filled in and printed out using the new ‘EAW Wizard’ tool for completing a European arrest warrant online, available in all languages on the EJN website.

Practical tip: http://www.ejn-crimjust.europa.eu/eawwizard.aspx

3.2.2 Content requirements

The European arrest warrant must contain specific information (Article 8(1) of the Framework Decision):

a) the identity and nationality of the requested personb) the name, address, telephone and fax numbers and e-mail address of the issuing

judicial authorityc) evidence of an enforceable judgment, an arrest warrant or any other enforceable

judicial decision having the same effect within the scope of the system d) the nature and legal classification of the offencee) a description of the circumstances in which the offence was committed, including the

time, place and degree of participation in the offence by the requested person f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties

for the offence under the law of the issuing Member Stateg) if possible, other consequences of the offence.

4 Council doc. 17195/1/10 REV 1 (see above).12/65

http://www.ejn-crimjust.europa.eu/eawwizard.aspx

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The information listed in a) to f) must always be provided to ensure the satisfactory outcome of the procedure. The form contains fields for several other items of information, although it states some of these are optional. For instance, while some information is seen as essential for an arrest in the executing State, and some is to enable the executing judicial authority to take its decision on the execution of the European arrest warrant, some other items are merely optional.

In practice, it is preferable to provide as much information as possible, since:the status of the information varies from one State to another: some authorities can be more ‘pernickety’ than others, some of them even going beyond what is required by the Framework Decision (see below); the more information the issuing authority provides, the easier it will in theory be to process the file. If it is better informed, the executing authority will tend to be more trusting, so that any unnecessary additional requests for information may be avoided.

The ‘European Handbook on how to issue a European arrest warrant5‘ also stresses the importance of paying very close attention to the description of the circumstances of the case (box e)). In particular, the circumstances must always be described fully and exhaustively, so that the application of the rule of speciality, ne bis in idem, the possibility of invoking the territorial clause, and the statute of limitations can be assessed. Thus, if the offence is not included in the list, the detailed description should enable the executing judicial authority to assess double criminality.It is also important to indicate the existence of photographs and fingerprints of the requested person, where they are available.

3.2.3 Language requirements

The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. States may make a declaration to the General Secretariat of the Council that they will accept a translation in one or more other official languages of the EU (Article 8(2) of the Framework Decision). Relatively few MS accept a language other than their official language. The final report on the 4 th round of mutual evaluations deplores this situation and recommends a more flexible approach to the EAW form and any supplementary information6.

Languages accepted by the Member States when receiving a European arrest warrant7:

Germany German, French, Dutch8

Austria German, French, Dutch, Czech, Slovak

Belgium French, Dutch, GermanBulgaria BulgarianCyprus Greek, Turkish, English5 Council doc. 17195/1/10 REV 1 (see above). 6 Council doc. 8302/2/09 REV 4 28.5.2009 (Recommendation 5 p. 11)7 Source: The handbook (see above), Annex IV 8 Germany and Austria accept European arrest warrants issued in all the official languages of the issuing States which accept European arrest warrants in German.13/65

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Denmark Danish, Swedish, EnglishSpain Spanish9

Estonia Estonian, EnglishFinland Finnish, Swedish, EnglishFrance FrenchGreece GreekHungary Hungarian10

Ireland Irish, EnglishItaly ItalianLatvia Latvian, EnglishLithuania Lithuanian, EnglishLuxembourg French, German, EnglishMalta Maltese, EnglishNetherlands Dutch, EnglishPoland PolishPortugal PortugueseRomania Romanian, English,

FrenchSlovakia Slovak, Czech with the

Czech Republic, Polish with Poland, German with Austria11

Slovenia Slovenian, EnglishSweden Swedish, Danish,

Norwegian, EnglishCzech Republic Czech, Slovak with

Slovakia, German with Austria

United Kingdom English (tab1_mod8_V30)

9 When a European arrest warrant is issued through a SIS alert, the executing judicial authority will provide the translation if it is not in Spanish.10 Hungary accepts the European arrest warrant in English, French and German in its relations with the Member States which accept language(s) other than their official languages.11 Based on previous bilateral treaties.14/65

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3.2.4 Principle of proportionality as a criterion for issue

According to the Framework Decision on the European arrest warrant, the competent authorities of an issuing Member State are not required to verify proportionality before deciding to issue a warrant, since there is no provision for evaluating the pertinence of a European arrest warrant in the particular case. It is, however, important, to follow the recommendations on this subject contained in the ‘European Handbook on how to issue a European arrest warrant’12. To curb the growing tendency in certain Member States of resorting to issuing an EAW for all types of offence that meet the formal requirements, in each case an assessment should be made that takes into account all the various elements, including the seriousness of the offence, the measure to be imposed, the resources to be deployed in the executing State and, in particular, the fact that the measure involves deprivation of liberty. A number of MS have introduced proportionality criteria into their law13. Thus, according to the handbook, the European arrest warrant should not be chosen where the coercive measure that seems proportionate, adequate and applicable to the case in hand is not preventive detention or where, although preventive detention is admissible, in the specific case an alternative non-custodial coercive measure may be chosen. As part of the review of the follow-up to the recommendations issued following the 4th round of mutual evaluations14, the Council specified, for example, the issue of summons to appear or hearings via videoconference as alternative measures to consider.

3.3. TRANSMISSION

3.3.1 Between whom?

In theory, the procedure passes between courts; in other words, the warrant is issued by and transmitted directly from the issuing judicial authority to the executing judicial authority. This is the second key element that reflects judicialisation. Nevertheless, a Member State may, if it is necessary as a result of the organisation of its internal judicial system, afford its central authority(ies) responsibility for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. In this instance, the information relating to the designated central authority or central authorities must be communicated to the General Secretariat of the Council (Article 7(2) of the Framework Decision). Any difficulties concerning the transmission or the authenticity of any document required for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States (Article 10(5) of the Framework Decision). These specifications are binding on all authorities of the issuing MS.

Indicate here, as applicable, the designated central authorities in your country

12 Revised handbook cited above (pp. 14-15).13 Annex to the final report from the Commission on the implementation of FD doc. SEC (2011) 430 of 11 April 2011 also mentions the case of the Czech Republic (p. 57), of Latvia (p. 110), of Lithuania (p. 116), and of Slovakia (p. 151).14 Council doc. 8436/2/10 REV2 of 28.5.2010.15/65

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3.3.2 How?

The procedures for the transmission of the European arrest warrant vary depending on whether the location of the requested person is known to the issuing judicial authority. => There are therefore two possible scenarios:

3.3.2.1 Where the issuing authority knows the location of the requested person

If the issuing authority knows the location of the requested person (Article 9 of the Framework Decision), it may transmit the European arrest warrant directly to the executing authority, but if the person is in a Member State that has designated a central authority for receiving European arrest warrants, it will send it to that authority. If it does not know the authority, it may make enquiries through the European Judicial Network to identify it (Article 10(1) of the FD). Given the short time limits for execution, it is advisable that the arrest warrant be translated in advance into one of the languages accepted by the executing Member State. Once the executing judicial authority has been identified, the issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity (Article 10(4) of the Framework Decision)15. There is, however, nothing to prevent the issuing judicial authority from issuing a SIS alert and initiating an Interpol alert (see below). This may even be preferable, since the information on the location of the person may be wrong or, even though the person may reside in the State identified as the executing State, they may be travelling or have fled. If the judicial authority which receives a European arrest warrant is not competent to act upon it, it automatically forwards it to the competent authority in its Member State and informs the issuing authority accordingly (Article 10(6)).To identify the authority that receives and executes the European arrest warrant in the executing State, consult the ‘Atlas’ on the website of the European Judicial Network. This provides the information requested if you type in data concerning the place to which the EAW will be transmitted (country, area, region, sub-region, locality and postcode). It may also be useful to contact the European Judicial Network contact point.

3.3.2.2 Where the issuing authority does not know the location of the requested person

In this instance, the issuing authority will issue an alert in the SIS, pursuant to Article 95 of the Convention Implementing the Schengen Agreement ( Compendium B.2.1.), and may – or must – call on Interpol’s services16.

SIS alert : the issuing authority must issue an alert in the SIS, pursuant to Article 95 of the Convention Implementing the Schengen Agreement. Under the previous extradition system, an alert had the same force as a request for provisional arrest (Article 64 of the CISA). Pursuant to the Framework Decision, an alert in the Schengen Information System is equivalent to a European arrest warrant accompanied by the information set out in Article 8(1) (Article 9(3) of the Framework Decision). The number of alerts for the purposes of arrest

15The final report on the 4th round of mutual evaluations stresses that many MS nonetheless require the original, and recommends abandoning this requirement (aforesaid document, recommendation 6 p. 12)16 A third channel is mentioned by the Framework Decision on the European arrest warrant, namely the secure telecommunications system of the European judicial network, but this channel is not yet operational (see Module 4).16/65

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and surrender is constantly increasing (28,666 in 2009, compared with 24,560 in 2008 and 19,199 in 2007, and in 2009 represented 82.5% of all EAWs issued by the States participating in the SIS)17.

This use of a SIS alert is, however, on a transitional basis, due to two types of technical limitations currently facing the SIS:

a) A technical limitation associated with the information and documents transmitted: at present, the SIS does not allow either the transmission of all the information listed in Article 8(1) of the Framework Decision or a scanned version of the European arrest warrant itself. Therefore, as long as this type of limitation exists, the procedure is as follows:

some of the information required by Article 8(1) will be transmitted through an alert in accordance with Article 95

•the additional information required will be transmitted by the Sirene bureaux via what are known as ‘A’ and ‘M’ forms: these are not entered into the SIS but sent by the Sirene bureau of the issuing State to the other Sirene bureaux

note that almost all the Member States use English as the working language for this type of exchange of information so that, in the event of a ‘hit’ in the SIS (i.e., if the person is located in one of the States connected to the SIS), the State in which the person is located has basic, understandable information that it can use to place the person in custody pending receipt of the translation

subsequently, the original and if necessary the translation of the European arrest warrant must be transmitted within a certain period following the arrest, which varies depending on the Member State (see below). There are differences between the Member States as regards the time limit for transmission following the arrest of the requested person. Complying with the specified time limit is imperative, since the person may be released if this has expired.

b) A technical limitation associated with the number of Member States connected: as of November 2010, 24 Member States of the European Union are connected to the SIS, that is, all 27 Member States minus the United Kingdom, Ireland and Cyprus. Iceland, Norway, Switzerland and Liechtenstein (since December 2011) are also connected to the SIS. However, these four States are not, as such, subject to the system established by the Framework Decision of 13 June 2002, but to a specific system very similar to that of the European arrest warrant, and which is applicable between the EU Member States and some of these Schengen partners (see below). Until such time as the other Member States are connected, the issuing authority must call upon Interpol.

The SIS II (second generation SIS) is under development. Initially, the objective of establishing a SIS II was to do away with these two types of limitation: as originally designed, the SIS II would not only enable all the Member States to be connected but also revamp the SIS. The intention was to introduce new aims, to expand access to other authorities and to integrate new information. However, the two aspects have become separated. Because substantial difficulties and delays were encountered in the revamping of the SIS, the Justice and Home Affairs Council of 5 December 2006 decided to extend the SIS to 9 of the new

17 Source: annex to the final report from the Commission on the implementation of the FD, doc. SEC (2011) 430 p. 14.17/65

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joining Member States (this did not initially include Bulgaria and Romania, and Cyprus has not joined the project), without awaiting implementation of the SIS II. An interim, provisional technical solution based on the existing system (known as ‘SISone4all’), has therefore been brought into being and has in theory been operating in most Member States since September 2007. The SIS II, with new aims and new information, is scheduled to come into operation in Spring 2013. With this new SIS, it will be possible to transmit all the necessary information as well as a scanned version of the European arrest warrant itself. This will therefore be equivalent to transmission of the original and will be immediately available, and a translation of the European arrest warrant will then simply need to be forwarded. Furthermore, the SIS II will also contain biometric data. The legal basis for SIS II is Council Decision 2007/533/JHA of 12 June 200718 (for more information on the SIS, see Module 5).

Recourse to Interpol (Article 10(3) of the Framework Decision): the issuing authority may – or must – call on Interpol, of which all the EU Member States are members (cf. the I-24/7 communication system, the diffusion system and the Red Notices system in Module 5). This system is even more valuable while not all the Member States of the European Union are connected to the SIS. For the Member States not yet connected to the SIS, note, however, that an Interpol international alert is equivalent to a request for provisional arrest but not to a European arrest warrant. After SIS II comes into operation, calling on Interpol will continue to be of value when the issuing State does not know the location of the requested person, since it can be used to contact third countries that are not EU Member States (see Module 5).

3.3.3 When? Although the alert has the value of a request for provisional arrest and EAW, where it is accompanied by the information listed in Article 9(3) of the FD, the latter does not in itself contain a provision on provisional arrest, and does not fix further time limits for receipt of the EAW following arrest of the requested person. There are significant differences between MS in this regard. The follow-up to the final report on mutual evaluations indicates that a time limit of 6 days would be reasonable19.

18 OJ L 205, 7 August 2007, p. 63.19 Council doc. 8436/2/10 REV2 of 28.5.2010, p. 3.18/65

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Time limits for receipt of the European arrest warrant following an arrest of the requested person20:NB: The time limits are stated as calendar days, unless otherwise indicated

Latvia 48 hoursLithuania 48 hoursLuxembourg 6 working daysMalta 48 hours21

Netherlands 23 days where the arrest is on the basis of a SIS alert; in other cases, as soon as possible.

Poland 48 hours22

Portugal The time limit is left to the discretion of the court, usually 10 days.

Romania 48 hoursSlovakia 18 days for receipt of the

original and the official translation (release of the person at the request of the prosecutor); 40 days (mandatory release of the person)

Slovenia 10 daysSweden As quickly as possible (a

few days, on decision of the prosecutor)

Czech Republic 40 daysUnited Kingdom 48 hours23

Germany 40 daysAustria 40 daysBelgium 10 daysBulgaria 24 hoursCyprus 3 days (provided the EAW

has been issued prior to the arrest of the requested person)

Denmark As quickly as possible or, insofar as possible, within 10 days24

20 Source: Revised handbook (Annex V)21 Prior arrest of the person only in exceptional cases. Where there is a SIS alert, this is deemed to be an EAW, and the court may set a deadline for receipt of the EAW.22 The Polish authorities must obtain a guarantee within 48 hours, by any means capable of producing written records, that a European arrest warrant has in fact been drawn up.23 Prior arrest of the person only in exceptional cases. If the EAW is requested, it must be provided or the person is released.24 The original or copy of the EAW is not required if the information resulting from the Schengen alert is sufficient.19/65

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Spain As quickly as possible, and always within 10 days

Estonia 3 working daysFinland As quickly as possible or,

on request, within a deadline set by the Finnish competent executing authority

France 6 working daysGreece 15 days, with a possibility

of extending the deadline to 30 days

Hungary 40 daysIreland 7 days25

Italy 10 days

25 In principle, arrest only takes place after the EAW has been endorsed by the High Court – once Ireland is connected to the SIS (although at present this process appears to have stalled), the arrest may, on an exceptional basis, be made before this endorsement. In this instance, the EAW, translated into English or Irish, must be transmitted within 7 days. 20/65

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4. Processing of the European arrest warrant by the executing authority

4.1. ‘FLAGGING’: THE POSSIBILITY OF BLOCKING EXECUTION OF THE EUROPEAN ARREST WARRANT UPON ENTRY OF THE ALERT IN THE SIS

When an alert is entered in the SIS by the issuing State, this alert must also be processed by the SIS central authority in each of the other States. A check is therefore conducted before activating the alert in the national territory. This check is currently governed by the provisions of the Schengen convention regarding extradition, which creates a degree of conflict with the Framework Decision on the European arrest warrant.

Under the Schengen convention, an indicator of validity (or, to use EU jargon, a ‘flag’) may be attached to the alert in question, preventing the person’s arrest for 24 hours. At the end of this 24 hours, the prohibition of arrest is either confirmed ‘on legal grounds or for special reasons of expediency’ or withdrawn. In exceptional cases, this 24-hour time limit may be extended by up to one week.

This ‘flagging’ may be perfectly justified: there are instances where it is certain that a person cannot be surrendered (for example, because he is 14 years’ old, whereas the age of criminal responsibility in the executing State is never lower than 16) and an arrest, even for a limited duration, must consequently be avoided.

The system established by the Schengen convention partially contradicts the Framework Decision on the European arrest warrant, since it could entail that arrest is prevented (which could de facto equate to non-execution of the European arrest warrant):

by a decision taken by an administrative authority (the SIS central authority), whereas the Framework Decision states that the decision on execution is taken by a judicial authority

‘on legal grounds or for special reasons of expediency’, whereas the Framework Decision provides for closed and narrowly-defined grounds for refusal.

It would, for example, be problematic if an administrative authority in charge of the SIS were to decide, at its own initiative, to enter a flag based on a double criminality or ne bis in idem requirement, since these are often complex legal issues that must be examined by a judicial authority.

The possibility of using flagging is retained in the new rules that will shortly apply to the SIS II, but will be more strictly defined26. A flag may therefore be added in two instances:

where the European arrest warrant in question has already been the subject of a normal procedure that has led to a decision of non-execution, and where the judicial authority that took this decision has requested the addition of a flag (= ‘a posteriori’ flagging)

where a ‘competent’ judicial authority (for example a court exercising certain centralised powers) has asked the SIS central authority to add a flag, either in the specific case (most probably referred by the SIS central authority) or by means of a general instruction (for example on the issue of minors) (= ‘a priori’ flagging), but only if it is

26 Article 25 of Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ L 205, 7 August 2007, p. 63).21/65

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obvious that the execution of the European arrest warrant must be refused.

Given the potential contradictions between the current text of the Schengen convention and the Framework Decision on the European arrest warrant, it is clearly preferable for the national authorities to choose to opt for the solutions contained in the decision on SIS II, even if these are not yet mandatory. Note the interesting example of France, where a judge is a permanent presence at the SIS central authority who ensures that there is judicial supervision of flagging at source.

‘Flagging’ should be distinguished from the deletion or correction of an alert under Article 111 of the Convention implementing the Schengen Agreement (‘CISA’). In the latter, the request may be made in any participating State, and the decision then enforced in the other States. The relationship between the two situations is, however, vague, and the final report on mutual evaluations states that this point should be examined further27.

4.2. OBLIGATION TO ARREST AND THE RIGHTS OF THE PERSON CONCERNED

Based on the European arrest warrant or on the SIS alert, the necessary measures must be taken in the executing Member State to locate and arrange for the arrest of the requested person.

The Framework Decision of 13 June 2002 expressly enshrines two rights in favour of a requested person who is arrested:

a) when a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority (Article 11(1) of the FD). This information should take the form of a letter of rights, for which an indicative model is published in an Annex to Directive 2012/13/EU of 22 May 2012 ( Compendium B.6a.1.)28.

A requested person who is arrested also has a right to be assisted by a legal counsel and by an interpreter (Article 11(2) of the FD). Access to interpretation is governed by the provisions of Directive 2010/64/EU of 20 October 2010 in the same way as for any suspect or accused person in a national procedure ( Compendium B.6a.2.)29. For other cases, arrest and detention will be governed by the international obligations incumbent on the executing State – including Article 5 of the European Convention on Human Rights – and by the domestic law of the executing State. The executing judicial authority will therefore decide whether the arrested person should remain in detention in accordance with its national law. Pursuant to that law, the authority may order the person’s provisional release, provided the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding (Article 12 of the Framework Decision).

The Framework Decision lays down further requirements regarding the rights of the person concerned:

27 Final report (see above), recommendation 14 p. 19)28 Article 5 and Annex II of Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, OJ L 142 of 1/6/2012. This instrument must be transposed into national law no later than 2 June 2014.29Article 2(7) of Directive 2010/64/EU of 20/10/2010 on the right to interpretation and translation in criminal proceedings (OJ L 280 of 26/10/2010). This instrument must be transposed into national law no later than 27 October 2013.22/65

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a) regarding consent to surrender given by the person concerned and, if appropriate, renunciation of entitlement to the ‘speciality rule’ (cf. Article 13 of the FD)

b) regarding the hearing of the person concerned: where the arrested person does not consent to his or her surrender, he or she will be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State (cf. Article 14 of the FD).

4.3. SURRENDER DECISION

4.3.1 Time limits for the decision to be taken and situation pending the decision

Since one of the main objectives of the new system is the acceleration of procedures, all European arrest warrants are to be dealt with and executed as a matter of urgency (Article 17(1) of the Framework Decision), and time limits for taking the decision on surrender have been laid down.

There are two separate scenarios:

a) either the person consents to the surrender: in this case, the final decision on surrender should be taken within a period of 10 days after consent has been given (Article 17(2) of the Framework Decision) Note that although the consent may not, in principle, be revoked, some Member States (DK, FIN, SE, BE) have made use of the possibility of declaring that revocation is possible (Article 13(4) of the FD). In such cases, the period between consent and revocation shall not be taken into consideration in establishing the time limits within which the decision to execute the EAW must be taken.

b) or the person does not consent to the surrender: in this case, the final decision on the execution of the European arrest warrant should be taken within 60 days of the arrest (Article 17(3) of the Framework Decision)

If these deadlines cannot be met, an extension of 30 days is possible, but the executing judicial authority must immediately inform the issuing judicial authority, giving the reasons for the delay (Article 17(4) of the Framework Decision).

Where, in exceptional circumstances, a Member State cannot observe the time limits provided for, it shall inform Eurojust, giving the reasons for the delay (Article 17(7) of the Framework Decision).

If the person enjoys a privilege or immunity, these time limits shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request to exercise that power, but it shall be for the issuing judicial authority to request it in all other cases (Article 20).

Pending its decision, and where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must either agree that the requested person should be heard according Article 19 of the Framework Decision or agree to the temporary transfer of the requested person (Article 18 of the FD). The conditions and the 23/65

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duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities.

4.3.2 Cases in which execution may or must be refused

In principle, the European arrest warrant must be executed, but no possibility of refusal is ruled out. This is, however, strictly regulated. Reasons must be given for any refusal (Article 17(6) of the Framework Decision). Any non-execution must be based on one of the permitted grounds for non-execution. Compared with the previous instruments governing extradition, the grounds for refusal to execute are markedly more restricted:

a) two grounds for refusal have simply been abolished: one based on the political nature of the offence one based on the nationality of the person concerned: in doing so, the

Framework Decision of 13 June 2002 on the European arrest warrant takes account of European citizenship.

Note that the fact that the requested person is a national of the executing State is not mentioned among the reasons for refusal and cannot be grounds for a decision of non-execution. Two specific rules are, however, applicable (see below):

for a European arrest warrant for the purposes of conducting a prosecution: the executing State may require that the requested person serve their sentence in their territory if the proceedings result in a conviction.

for a European arrest warrant for the purposes of serving a sentence: the executing State may decide that the sentence in question should be served in their territory. In this case, the European arrest warrant is executed even if the person is not actually surrendered to the issuing State.

The fact that the requested person is a national of the executing Member State sometimes has the effect of modulating certain optional grounds for refusal, such as the territoriality clause (see below).

b) others have been ‘relaxed’: this the case for the double criminality requirement, which traditionally allows States to refuse to give their support for the suppression of acts that do not constitute offences in their own law. Verification of this requirement has in fact been partially abolished (see below).

Among the grounds for non-execution of the European arrest warrant expressly laid down as such by the Framework Decision, three are mandatory, others are optional.

4.3.2.1 The three mandatory grounds for non-execution (Article 3 of the FD)

a) Amnesty (Article 3(1) of the FD): if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, but only when that State has jurisdiction under its own criminal law to prosecute the offence in parallel to the issuing State.

b) Ne bis in idem (Article 3(2) of the FD): if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the

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laws of the sentencing Member State. Unlike the provisions of the previous instruments governing extradition, this condition is relative, in that it does not automatically require verification by the executing judicial authority. This change is due to the dynamics of the new system, under which such verification takes place principally in the issuing State. Having said this, if the executing judicial authority is notified of the existence of such a final sentence, (see below – the ‘Mantello’ judgment of the CJEU), it must draw its own conclusions, i.e. refuse to execute the warrant (see Module 9 for more information on ne bis in idem in transnational relations).

c) Criminal responsibility (Article 3(3) of the FD): where the person concerned, due to his or her age could not yet have been held criminally liable for the acts in respect of which the decision was passed under the law of the executing State. The rules on the age of criminal responsibility vary considerably from one Member State to another.

4.3.2.2 Optional grounds for non-execution (Article 4 of the FD)

The Framework Decision of 13 June 2002 lists 7 instances where the executing judicial authority may refuse to execute the European arrest warrant. These seven optional grounds for non-execution according to the Framework Decision are the following:

a) Absence of double criminality (Article 4(1) combined with Article 2 of the Framework Decision): if the European arrest warrant is based on acts that are not one of the offences for which the double criminality test has been abolished, and in these circumstances the double criminality test has not been met. The possibility of verifying double criminality is therefore still the rule, but in practice this verification has been largely abolished. The Framework Decision provides that verification may take place only in the cases foreseen in paragraph 4 of Art 2 meaning that the offence is not included in the conditions settled in paragraph 2 of the same article.

The reference to the law of the issuing State, rather than that of the executing State, is crucial in explaining this limitation of the verification of double criminality. The executing judicial authority may therefore not verify whether the classification of the offence corresponds to that of its domestic law (or, by extension, the severity of the penalty). In other words, the executing authority must confine itself to checking that the issuing authority has ticked one of the 32 boxes in the list contained in the certificate or warrant (see below)30.

Moreover, the descriptions used in this list do not correspond to legal classifications. The wording is generic. These 32 categories of offence should be interpreted flexibly by the issuing authority when completing the certificate or warrant. It is of course not required that exactly the same terms (e.g. ‘sabotage’) are used in domestic law.

30 At most, execution might be refused based on the fact that there is a manifest discrepancy between the description of the acts and the box ticked in the list. It should also be noted that not all national legislation implementing framework decisions on mutual recognition are necessarily consistent with those decisions, so the executing authority may find itself faced with contradictory indications.25/65

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Verification of double criminality is also no longer exercised with regards to attempts at or complicity in one of the 32 categories of offences, except in Bulgaria, Denmark and Poland31.

See below for the judgment of the Court of Justice in the Advocaten voor de wereld case concerning the compatibility of Article 2(2) of the Framework Decision with Article 6(2) of the EU Treaty.

b) Ongoing prosecution in the executing State for the same act (Article 4(2) of the FD). This is normally the case where the person is already being prosecuted for the same acts when the executing authority receives the EAW, but some implementing laws have applied this provision differently: for example, in Austria, an EAW issued in respect of a national for offences committed abroad will be sent to the national prosecution authorities if the offences are also punishable in Austria in order to initiate a new procedure in Austria32.

c) Extension of the ne bis in idem principle to decisions adopted in the executing Member State not to prosecute or to halt proceedings in respect of the same acts, preventing further proceedings (Article 4(3) of the Framework Decision). This ground for refusal largely corresponds to the broad interpretation given by the CJEU to Article 54 of the Convention implementing the Schengen Agreement in the Gözutöc and Brügge case (see Module 9). According to this interpretation, it is therefore logical to consider that this ground for non-execution has become mandatory.

d) Extension of the ne bis in idem principle to third States (Article 4(5) of the FD): if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served, or may no longer be executed under the laws of the sentencing country.

e) Statute of limitations (Article 4(4) of the FD): where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State, but only when the acts fall within the jurisdiction of that Member State under its own criminal law.

f) Nationality or residence in the executing State (Article 4(6) of the Framework Decision): if the European arrest warrant has been issued for the purposes of executing a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law. For example, if a European arrest warrant is issued in respect of person X, a national or resident of State A, by a court in State B for the purposes of execution of a sentence, the judicial authority of State A may refuse to execute the warrant and to surrender X, but will undertake to execute the sentence in accordance with its domestic law33.

31 Source: annex to the final report from the Commission on the implementation of the FD doc. SEC (2011) 430 p. 11.

32 Source: final report from the Commission (SEC(2011) 430 – see above – p. 3).33 The final report on the 4th round of mutual evaluations noted, however, that for some MS that use this ground for refusal, the legal basis for execution of the sentence in the executing MS is deficient (Council doc. 8302/4/09 REV 4 COR 1).26/65

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Several Member States apply these provisions differently, depending on whether the requested person is or is not a national: the ground for refusal is mandatory in the first instance, and optional in the second (for example in AT34 and in DE35), or simply not applicable to non-nationals (SE36). This is also reserved solely for nationals in France.

The Court of Justice has already been called upon on three occasions concerning matters of interpretation of this provision: in the Szymon Kozlowski case, in the Wolzenburg case, and in the Lopes da Silva Jorge case (see below – section 8).The surrender of nationals on the basis of an EAW has also been the subject of a number of judgments from national courts (see below – section 7).

Execution should be possible even if the acts that gave rise to the final sentence are not punishable in the executing MS37. Where the executing Member State undertakes to execute the sentence instead of surrendering the person who is the subject of the European arrest warrant (or where execution of the warrant is subject to returning the person to the executing Member State in order to serve their sentence there – see below), the provisions of Framework Decision 2008/909/JHA of 27 November 2008 ‘on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU’ (Compendium B.5.5. – see Module 10) applies ‘mutatis mutandis to the extent that they are compatible with those of the FD on the EAW’ (Article 25 of FD 2008/909). However, this instrument allows (Article 7(4)) Member States to declare they will refuse to execute the sentence where there is no double criminality (PL, IE and AT have made a declaration to that effect38). The final report notes differences that could cause difficulties39. It is recommended that any problem encountered in this regard is reported to the government, which may refer the matter to the Commission, which is responsible for the report on the transposition of FD 2008/909/JHA.

g) Territoriality clause (Article 4(7) of the FD): where the European arrest warrant relates to offences that: Are either (letter a) regarded by the law of the executing State as having been

committed in whole or in part in the territory of the executing State or in a place treated as such. For example, if a murder has been committed by X in the territory of State A, where the victim is a national (Y) of State B and a judicial authority of State B issues a European arrest warrant against X, the executing authority of A may refuse to execute the warrant, since the murder was committed in its own territory

34 Source: final report from the Commission (SEC(2011) 430 – see above – p. 36.35 Article 83b, paragraph 2 of Gesetz über die Internationale Rechtshilfe in Strafsachen.36 Section 6, chapter 2 of law 2003: 1156 of 30 December 2003.37 The accompanying document to the final report from the Commission on the implementation of the FD indicates that this is the case in AT, LU, SI, SE, but not in HU, LV, NL, PL, PT or RO (doc. SEC (2011) 430 p. 10).38 Cf., for Ireland, OJ L 91, 29 March 2010, p. 28. For Austria, see Council doc. 5698/12 of 26 January 2012, and for Poland, doc. 5650/12 of 26 January 2012.39 Final report on the fourth round of mutual evaluations, p. 14)27/65

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Or (letter b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. For example, if a murder has been committed by X in the territory of State C, where the victim is a national (Y) of State B and a judicial authority of State B issues a European arrest warrant against X, the executing authority of State A may refuse to execute the warrant if its domestic law does not allow prosecution of murders committed outside its territory.

In a number of Member States, these provisions, particularly those of subparagraph (a), are applied differently depending on whether the requested person is a national of the executing Member State (for example, in DE40 and in PL41).

Many national implementing laws have made these grounds for non-execution, or some of them, mandatory grounds for non-execution. In practice, to determine the precise status of these grounds for non-execution, the content of the national implementing laws should therefore be checked. Where the executing authority has doubts as to the existence of a ground for refusal, it is advisable to contact the issuing authority direct for any supplementary information (Article 15(2) of the FD) in order to clarify the situation and adopt a decision in full knowledge of the facts.

Beyond these questions regarding the optional or mandatory status of grounds for non-execution, we must be aware that many national implementing laws have introduced other grounds for non-execution not provided for by the framework decision on the European arrest warrant42. Note, in this regard, the special case of breach of human rights.

Indicate here the specifics of your national implementing law and the relevant case-law where appropriate

4.3.2.3 The special case of human rights

Among the grounds for mandatory or optional non-execution of the European arrest warrant, the Framework Decision makes no explicit mention of either the ‘humanitarian’ or the ‘non-discrimination’ clause, or a general clause to the effect that there should be no surrender if there are valid grounds for believing that it would breach the person’s fundamental rights. However, the preamble to the Framework Decision does refer to the humanitarian or non-discrimination clause (see recital 13), and its Article 1(3) states that it ‘shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union’. National legislators have transposed the Framework Decision in different ways in this respect:

40 Cf. Article 80 of Gesetz über die Internationale Rechtshilfe in Strafsachen.41 Article 55 of the Polish Constitution.42 The mutual evaluation report on Italy recommends the removal of no less than 9 grounds for refusal in Italian law (doc. 5832/2/09 REV 2, point 7.3.2.1.a). Some have been substantially moderated by the Court of Cassation.28/65

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Some have made no provision at all for a ground for non-execution on the basis of fundamental rights (such is the case in Luxembourg and Spain’s legislature)others have introduced the humanitarian or non-discrimination clause only (e.g. French legislature), or a general human rights clause only (such as in Belgian law) others have even inserted both (Greek law, for example) or have expanded on the grounds for refusal on the basis of fundamental rights (e.g. the United Kingdom and Italy, which has, inter alia, inserted a ground for refusal on the basis of lack of a maximum duration for pre-trial detention).

Judicial authorities have also responded differently. Some of them have shown moderation, while others have been bold and others highly suspicious.

How should you respond? It is best to respond in a balanced fashion, taking account of two essential concerns simultaneously:

firstly, there can be no question of breaking with the philosophy underpinning the entire principle and mechanism of mutual recognition, namely mutual confidence and the idea that verifications should first and foremost be carried out in the issuing State.

Secondly, the executing authorities cannot evade due respect for fundamental rights.

In this delicate exercise, the executing authority will have to ask itself two fundamental questions in order to navigate the process of mutual recognition:

could the alleged violations of fundamental rights be invoked before the courts of the issuing State and be duly taken into account by those courts?

is the executing authority sufficiently well placed, particularly in view of the inherent complexity of all national legal systems, to assess whether there is a possible breach of a fundamental right in the issuing State43?

the position taken should draw on the case-law of the CJEU concerning asylum applications44 whereby, if we assume that the treatment of asylum seekers respects fundamental rights in all MS, this assumption is rebutted is there are substantial grounds for believing that there are, in the MS normally competent to consider such requests, systemic violations of these rights that may result in an inhuman or degrading treatment within the meaning of Article 4 of the Charter.

the Court of Justice is due to give its judgment shortly, as part of a preliminary ruling45.

4.3.3 Conditional surrender

In three scenarios, the executing judicial authority may make the surrender subject to obtaining certain guarantees from the issuing authority (Article 5 of the Framework Decision):

43 The European Court of Human Rights has recognised that it would be more pertinent for the assessment of any unduly lengthy period between the acts and the prosecution, as regards the principle of a fair trial, to take place in the MS issuing the EAW rather than in the MS executing it (2011 (EUR Court HR, 4 May 2010, Stapleton v Ireland, Application 56588/07)).44 CJEU, 21 December 2011, Joined Cases N.S. and M.E., C-411/10 and C-493/10. This case-law echoes a judgment of the European Court of Human Rights of 21 January 2011 (EU Court HR, 21 January 2011, M.S.S. v Belgium and Greece, 30696/09). 45 Case C-396/11. The conclusions of the Advocate General, dated 18 October 2012, supported recognition of the possibility of refusing execution ‘where it is shown that the human rights of the person whose surrender is requested have been infringed, or will be infringed’, but this refusal may only be made ‘in exceptional circumstances’ where the infringement is such as ‘fundamentally to destroy the fairness of the process’ and ‘past infringements that are capable of remedy will not found such an objection’.29/65

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4.3.3.1 Decisions in absentia

Where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia, and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment. For the executing judicial authority, the requirement for such assurances is theoretically only optional and not mandatory: according to the Framework Decision, that authority may, but need not necessarily, require them.Under the new Framework Decision 2009/299/JHA of 26 February 2009 ( Compendium B.5.8.)46 – which should be transposed no later than 28 March 201147) – a new Article 4a has been inserted into the Framework Decision on the European Arrest Warrant. These new provisions replace this system of conditional surrender. They allow, subject to certain conditions, refusal to execute the EAW if the person did not appear in person at the trial resulting in the decision. For further information, see Article 2 of Framework Decision 2009/299/JHA. The previous system nevertheless remains in force in respect of judgments in absentia handed down in Italy, which has declared, as authorised by Article 8(3) of FD 2009/299, that it will only apply it from 1st January 2014 at the latest.

4.3.3.2 Life sentences and life-time detention orders

If the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure. As with the previous scenario, this option is only available to the executing judicial authority.

4.3.3.3 Nationality and residence

Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. This is the second qualification made to the abolition of the ground for refusal on the basis of nationality. For example, if a European arrest warrant is issued in respect of a person X, a national or resident of State A, by a court in State B for the purposes of prosecution, the judicial authority of State A may make the surrender of X subject to the return of X, after being heard, to serve the custodial sentence or detention order passed against him in State B. See the observations on Article 4(6) of the FD above, and in particular the impact of Framework Decision 2008/909/JHA of 27 November 2008 ‘on the application of the principle of mutual

46 OJ L 81, 27 March 2009, p. 24. 47 As at 10 October 2012, only Bulgaria, Denmark, Latvia and the Netherlands had notified their implementing legislation. 30/65

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recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union’ (Module 10).See also the judgment of the Court of Justice in the I.B. case concerning combinations of the conditions laid down in Article 5(1) and (3).

4.3.4 Decision in the event of multiple requests

4.3.4.1 European arrest warrants issued by two or more Member State (Article 16(1) and (2) of the Framework Decision)

If two or more Member States have issued European arrest warrants for the same person, the executing judicial authority shall make their decision with due consideration of:

all the circumstances and especially the relative seriousness of the offences and the place where they were committed

the respective dates of the European arrest warrants whether the warrant has been issued for the purposes of prosecution or for execution of

a custodial sentence or detention order.

The advice of Eurojust may be sought, but this will not be binding. An annex to Eurojust’s 2004 annual report contains guidelines concerning decisions in the event of multiple arrest warrants for the same person and the same offence or for different offences, for the purposes of prosecution or execution of a sentence48.

4.3.4.2 Conflict between a European arrest warrant and a request for extradition presented by a third country (Article 16(3) of the Framework Decision)

The Framework Decision does not expressly state that the European arrest warrant takes precedence over a request for extradition from a third country. It simply states that the executing State must choose between the two competing requests with due consideration of all the circumstances. Nevertheless, since the aim is to establish a European criminal law-enforcement area between the Member States of the European Union and to create mutual confidence, except in special cases it would a priori seem logical to give precedence to a request from another Member State.

4.3.5 Appeals

The Framework Decision itself makes no provision regarding any appeals against a decision taken by the executing judicial authority concerning surrender. The rules on the matter are governed by the executing State’s domestic law. It should be noted, however, that the time limits set forth in Article 17 (see above) also apply to appeals.

48 The annual reports are available on Eurojust’s website.31/65

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Indicate here the specifics of your national implementing law

4.3.6 Notification of the decision to the issuing authority

The decision on the action to be taken on the European arrest warrant must be notified immediately to the issuing authority by the executing authority (Article 22 of the Framework Decision).It is also important to inform the issuing authority about the progress of the execution process. In the follow-up to the evaluations report, a form was proposed to this effect and introduced into the revised version of the handbook49.

4.4. THE SURRENDER ITSELF

4.4.1 Time limits

4.4.1.1 Principle

The person requested will be surrendered as soon as possible on a date agreed between the authorities concerned (Article 23(1) of the Framework Decision). He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. If the surrender within this time limit is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed (Article 23(2) and (3) of the FD).

4.4.1.2 Temporary postponement of the surrender for serious humanitarian reasons

The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. However, as soon as these grounds have ceased to exist, the executing judicial authority shall immediately inform the issuing judicial authority and agree on a new date for the surrender to take place (Article 23(4) of the FD).

4.4.1.3 Failure to comply with the above time limits

If the above time limits expire, the person shall be released (Article 23(5) of the FD).

4.4.2 Postponed or conditional surrender

The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may 49 Annex VIII to the revised handbook (see above)32/65

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serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant (Article 24(1) of the FD).

There is an alternative: instead of postponing the surrender, the executing judicial authority may temporarily surrender the person to the issuing Member State, under conditions to be determined by mutual agreement in writing (Article 24(2) of the FD).

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5. Effects of the surrender

5.1. DEDUCTION OF THE PERIOD OF DETENTION SERVED IN THE EXECUTING MEMBER STATE (ARTICLE 26 OF THE FD)

The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing Judicial authority to the issuing judicial authority.

5.2. SPECIALITY RULE AND EXCEPTIONS (ARTICLE 27 OF THE FD) Under the speciality rule, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. However, this rule is deprived of much of its substance, since the Framework Decision makes it conditional on two types of exception:

it does not apply in the seven cases listed in Article 27(3) it does not apply between the Member States that have notified the General Secretariat

of the Council that consent is presumed to have been given for persons surrendered to be prosecuted, sentenced or detained for an offence committed before the surrender and other than that for which he or she was surrendered (only AT and EE have made such a declaration). Even when such notification has been given, the executing authorities retain the option, in specific cases, of providing otherwise in the decision to surrender.

On the interpretation of Article 27 of the FD, see (below) the judgment of the Court of Justice in the Leymann and Pustovarov case.

Note that the FD does not contain any provision on ‘accessory’ surrender (the ability to surrender the person at the same time for acts that fall within the scope of the FD and for offences that do not fall within this scope, contrary to the Council of Europe extradition convention (Article 2(2)). The situation varies between Member States50. In addition, prosecution for previous acts not covered by the EAW, but which are not punishable by a penalty involving deprivation of liberty, is authorised under Article 27(3) b), c) and d).

Indicate here the specifics of your national implementing law

50 Final report on the fourth round of mutual evaluations (p. 16) and final report from the Commission (SEC (2011) 175, p. 9).

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5.3. SURRENDER OR SUBSEQUENT EXTRADITION (ARTICLE 28 OF THE FD) Where a person X has been surrendered by executing State A to issuing State B, the latter may not then surrender the person to another Member State C or extradite him or her to a third State for an offence committed prior to the initial surrender, without the executing State A having given its consent to this surrender or this subsequent extradition. In the case of a subsequent surrender to another Member State, however, this principle, is deprived of much of its substance in that:

a) in three scenarios, the subsequent surrender to a Member State may take place without the consent of the executing State A (paragraph 2).

b) the executing State A’s option of refusing subsequent surrender to another Member State is limited and subject to rules: State A must consent to the surrender when the offence for which surrender is requested entails an obligation to surrender (paragraph 3).

c) Each Member State may notify the General Secretariat that, in its relations with other Member States which have given the same notification, it consents to the subsequent surrender of the person to a Member State other than the executing Member State for offences committed prior to surrender. None of the Member States have made use of this option. Even when such notification has been given, the executing authorities retain the right, in specific cases, of providing otherwise in the decision to surrender (paragraph 1).

The Court of Justice has stated that where there is more than one successive warrant, the executing MS that must indicate its consent is the one that made the last surrender: see below – the Melvin West case.Note that these three relaxations of the rule do not apply in the case of subsequent extradition to a third State (Article 28(4) of the FD).

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6. Relation to other legal instruments and the application of the European arrest warrant over time

6.1. RELATION TO OTHER LEGAL INSTRUMENTS (ARTICLE 31 OF THE DC)From 1 January 2004, the Framework Decision of 13 June 2002 replaced the following existing conventions between the EU Member States51:

a) the 1957 Convention of the Council of Europe and its protocols, as well as the provisions relating to extradition in the 1977 European Convention on the suppression of terrorism

b) the Convention of 16 May 1989 between the MS of the EC on the simplification and modernisation of methods of transmitting extradition requests

c) The EU extradition conventions of 1995 and 1996d) the provisions (Title III, Chapter 4) of the Convention Implementing the

Schengen Agreement.

However, these texts do not necessarily cease to apply:a) between Member States: consideration should be taken not only of the rules

governing the application of the Framework Decision over time (see below), but also of any annulment by specific national constitutional courts of domestic implementing legislation. In the event of annulment, the resultant legal vacuum has to be filled, and it is logically the old rules that are then applied (see the case of Germany below, before the entry into force of the law of 25/7/2006).

b) between Member States and third States: the pre-existing provisions continue to apply. For instance, the conventions of the Council of Europe continue to apply in relations between Member States and third States.

On the interpretation of Article 31 of the FD, see (below) the judgment of the Court of Justice in the Santesteban Goicoechea case.

Article 31(2) also allows MS to continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged. Thus, DK, SE and FIN continue to apply the uniform legislation in force between the Nordic States between them52.

NOTE: arrangements with the Schengen partners

a. The extradition system, with the improvements already introduced by the Schengen convention, currently continues to apply with the Schengen associate states, namely Iceland, Norway and Switzerland, since these States are not bound by the Framework Decision on the European arrest warrant, which is not a development of the Schengen acquis.

b. However, solely in the case of relations between the EU Member States and Norway and

51 Note, however, that the FD does not necessarily apply to regions outside Europe. For example, NL has indicated that the framework decision and the law on surrender only apply to parts of the Netherlands that are in Europe (i.e. not between the Netherlands Antilles and Aruba and the EU Member States).52 Declarations in OJ L 246 of 29/9/2003, p. 1.36/65

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Iceland (and therefore not with Switzerland or Liechtenstein), it should be noted that an agreement was concluded on 28 June 2006 on a ‘surrender procedure’ ( Compendium B.8.3). This agreement, which is not yet in force, establishes a procedure that is almost identical to that of the European arrest warrant: judicialisation, scope of the SIS alert etc., albeit with some slight differences, including:

double criminality: verification of double criminality still applies, but each of the States concerned may declare that, on condition of reciprocity, it will abolish this verification in the same instances as those provided for the European arrest warrant.

political offence: the exception for political offences is removed, but this removal may be limited to specific terrorist offences.

surrender of nationals: the basic rule is identical to that of the European arrest warrant, but one of the States concerned may declare that it will refuse to surrender its nationals.

6.2. APPLICATION OF THE EUROPEAN ARREST WARRANT OVER TIME (ARTICLE 32 OF THE FD)Requests for surrender received before 1 January 2004 are still governed by the previous instruments. This will apply only as long as the extradition procedure is in force. This procedure may result in a refusal to extradite. Although the matter is not regulated in the Framework Decision, it appears that in this instance it is possible to issue a European arrest warrant, the execution of which will then be subject to the new system created by the Framework Decision. Accordingly, if the refusal to extradite is based, for example, on the fact that the person in question is a national of the requested Member State, issuing a European arrest warrant will make it possible to overcome this obstacle, since this ground for refusal is not provided for in the Framework Decision.

In principle, the European arrest warrant procedure is applicable to surrender requests received after 1 January 2004. This date is effectively applicable in the Member States which had transposed the Framework Decision into their law by that date. It is a later date in the other Member States (see the table below). In addition, the Framework Decision provides that at the time of adopting the Framework Decision, Member States may make a declaration indicating that they will continue to apply the previous extradition system to acts committed before a date which they specify, provided that the date in question is not later than 7 August 2002. Six Member States have made use of this option, but not always in the manner provided for in the Framework Decision:

a) The French implementing law provided that the new system would apply to surrender requests received from 10 March 2004, but that the previous extradition system would continue to apply to requests based on acts committed before 1 November 1993.

b) Italy and Austria declared that they will continue to deal with requests for surrender for acts committed before the entry into force of the FD (7/8/2002) in accordance with the previous extradition system. In addition, Italy continues to verify double criminality for acts committed prior to the Italian implementing law (i.e. committed before 14/5/2005).

c) Luxembourg’s implementing law states that the European arrest warrant will only apply to acts committed after 7 August 2002, irrespective of whether LUX was the

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issuing or executing Member State, although it had not made the necessary declaration to this effect at the time of adoption of the Framework Decision. The legislation was amended in August 2011 to bring it into conformity with the FD.

d) The Czech Republic declared that it would continue to apply the previous extradition system to requests concerning Czech nationals based on acts committed before 1 November 2004, in other words by a date later than 7 August 2002, without making a distinction as to the issuing or executing Member State. This declaration was also untimely, since this country is one of the new Member States which clearly could not have been associated with the adoption of the Framework Decision.

e) Slovenia also declared that its implementing law is applicable only to offences committed after 7 August 2002, but withdrew its declaration in October 2008.

Application of the law on the European arrest warrant with

effect from:

Reservation concerning its scope over time:

Germany 23/08/2004 ---Austria 01/05/2004 Applies to acts committed

after 07/08/2002Belgium 01/01/2004 ---Bulgaria 01/01/2007 ---Cyprus 01/05/2004 ---Denmark 01/01/2004 ---Spain 01/01/2004 ---Estonia 07/01/2004 ---Finland 01/01/2004 ---France 12 (Paris) – 13/03/2004 Applies to acts committed

after 01/11/1993Greece 09/07/2004 ---Hungary 01/05/2004 ---Ireland 01/01/2004 ---Italy 14/05/2005 Applies to acts committed

after 07/08/2002Latvia 30/06/2004 – 21/10/2004

(surrender of nationals)---

Lithuania 01/05/2004 ---Luxembourg 26/03/2004Malta 07/06/2004 ---Netherlands 12/05/2004 ---Poland 01/05/2004 ---Portugal 01/01/2004 ---Romania 01/01/2007 ---Slovakia 01/08/2004 ---Slovenia 01/05/2004Sweden 01/01/2004 ---Czech Republic 14/01/2005 Applies to acts committed by

Czech nationals after

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01/11/2004United Kingdom 01/01/2004 ---

(tab3_mod8_V30)

On the interpretation of Article 32 of the FD, see (below) the judgment of the Court of Justice in the Santesteban Goicoechea case.

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7. Transposition and practical implementation

The measures transposing the Framework Decision were to be adopted by the Fifteen by no later than 1 January 2004 and by the 10 new Member States by no later than 1 May 2004. Of the 15, only 8 were ready in time: Belgium, Denmark, Ireland, Finland, Spain, Sweden, Portugal and the United Kingdom. To date, the text has been transposed in all the Member States – including the two new members, Romania and Bulgaria, from 1 January 2007. However, as evidenced by the first report from the European Commission on evaluations issued in February 2005, many Member States transposed it late, and many also did so inconsistently (e.g. Italy, which increased the number of grounds for refusal).

In some cases, the application of the European arrest warrant generated significant difficulties, but practitioners generally agree that overall it has been a great success and has markedly improved cooperation in comparison to the previous extradition procedure.

Although the figures should be treated with caution, particularly because not all the States have reliable statistics in this area, the data in the table below confirm this overall positive trend. The number of EAWs issued has more than doubled in 5 years, while the number of EAWs executed over the same period has multiplied by five.

Statistics on the application of the European arrest warrant(2005-2009)53:

2005 2006 2007 2008 2009

Number of EAWs issued

6894 6889 10883 14196 15827

Number of persons surrendered

836 1223 2221 2919 4431

In 2009, surrender decisions with the consent of the person concerned were taken within an average of 16 days and those without consent within an average of 48.6 days. Over 50% of surrenders took place with the consent of the person concerned54.

However, constitutional problems have arisen in some of the Member States, primarily with regard to the surrender of nationals. In some instances, these led to the total or partial annulment of the implementing law, and sometimes to a constitutional amendment (PL, RO, CY)55. There are three important examples of this below:

53 Source: final report from the Commission (2011) 175, p. 12. Statistics for each Member State are provided in the document SEC (2011) 430 (see above). More recent, but not consolidated, statistics can be found in the documents of the Council (Doc. 9120/2/11 REV 2 of 9 September 2011 and 9200/5/REV 5 of 17 September 2012 for the years 2010 and 2011 respectively).54 Source: final report from the Commission (2011). COM (2011) 175, p. 11.55 Six Member States have also amended their constitution so as to allow the surrender of their nationals without waiting for a pertinent judgment from their Constitutional Court (FR, PT, LV, SK, SI and FIN)40/65

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7.1. GERMANY In a decision of 18 July 2005, the German Federal Constitutional Court (Bundesverfassungsgericht)56 annulled the entire German implementing law on grounds of inconsistency with the Constitution. This decision was handed down following the European arrest warrant issued by the Spanish investigating judge Baltasar Garzon against Mamoun Darkanzali. This businessman, regarded as a close associate of the Saudi national Osama Bin Laden, has dual nationality – Syrian and German – and is suspected of complicity in terrorist activities as well as membership of Al Qaeda. The subject had brought an appeal before the Constitutional Court against a decision of the Oberlandesgericht and the judicial authority to surrender him to the Spanish authorities. The Constitutional Court upheld the appeal, ruling that the implementing law infringed Articles 16(2) and 19(4) of the German Constitution. Until such time as a new implementing law was adopted, in principle Germany relied on the previous extradition system. A new implementing law has since been adopted, and has been in force since 2 August 2006. However, for nationals and persons treated as such, this introduces a ‘proportionality test’ concerning appeals against the European arrest warrant, therefore still applying differentiated treatment for nationals, contrary to the Framework Decision.

7.2. POLAND Article 55(1) of the Polish Constitution prohibits the extradition of its nationals. When transposing the Framework Decision, the Polish legislator did not concern itself with this provision. It considered that ‘surrender’ in the context of a European arrest warrant is a separate concept to that of extradition and is therefore not covered by Article 55(1). Article 607t(1) of the Code of Criminal Procedure authorises the surrender of a Polish national on the basis of a European arrest warrant issued for the purposes of prosecution. Following a Dutch European arrest warrant issued against a Polish national (Maria D.), Gdansk regional court nevertheless decided to refer the matter to the Polish Constitutional Court. Unlike the legislator, the Constitutional Court held that the procedure on the basis of the European arrest warrant complies with the definition of extradition within the meaning of Article 55(1) of the Constitution. According to the court, surrender is in essence no different to extradition. Both cases entail handing over a person who is sought for prosecution or sentencing to a foreign State so that it can undertake a prosecution or in order to impose a sentence. The court therefore held that surrender is a form of extradition within the meaning of Article 55(1) of the Polish constitution, and thus concluded that Article 607t(1) is unconstitutional57. It merely annulled the disputed provision, rather than the implementing law as a whole. It also delayed the effect of the annulment by 18 months, until 6 November 2006. Article 55 of the Polish constitution was amended in due course and since 7 November 2006 Poland has been surrendering its nationals, albeit maintaining some restrictions (the alleged acts must have been committed outside Polish territory, and the surrender is subject to the double criminality requirement). Therefore, whether it is consistent with the Framework Decision is still open to question.

7.3. CYPRUS The constitution of Cyprus prohibits the extradition of its nationals. The surrender of a Cypriot national to the British judicial authorities had been refused on the basis of the unconstitutionality

56 Judgment BVR 2236/04. 57 Polish constitutional court, 27 April 2005, www.trybunal.gov.pl/eng/summaries/wstep_gb.htm. 41/65

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of the national law transposing the Framework Decision. In support of an appeal against this refusal, the public prosecutor’s office argued, inter alia, that the surrender procedure was not equivalent to an extradition, and that it could not therefore be considered to fall within the scope the constitutional prohibition. This argument was not accepted by the Supreme Court of Cyprus in its judgment of 7 November 200558. Conservatively, it circumvented the issue: it argued that the reasons justifying the arrest of persons are exhaustively enumerated by the Constitution and that, whatever the nature of the ‘surrender’, the arrest of a Cypriot for the purposes of his or her surrender to the judicial authorities of another Member State on the basis of a European arrest warrant is not included in that list of reasons. It concluded that it cannot interpret domestic law in conformity with the Framework Decision concerned, since this could not be considered superior to the national constitution. A revised version of the Cypriot Constitution entered into force on 28 July 2006. However, the surrender of its nationals is possible only for acts committed after the date of Cyprus’s accession to the European Union (1 May 2004), thus maintaining a distinction between the treatment of its nationals and that of other citizens of the EU.

58 Ap. 294/2005 (cf. Council of the EU, doc. 8216/2/08 REV2 p. 120).42/65

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8. The case-law of the Court of Justice of the European Union on the European arrest warrant

To date, the European arrest warrant has been the subject of seven decisions of the Court of Justice of the European Union in Luxembourg. Of the seven references for preliminary rulings, only one concerns the validity of the Framework Decision (the Advocaten voor de wereld case), while the other three relate to its interpretation. These judgments are briefly discussed below.

8.1. ADVOCATEN VOOR DE WERELD CASE 59

8.1.1 Legal background

An action was brought before the Belgian Constitutional Court seeking the annulment of the Belgian law transposing the European arrest warrant. There were various grounds for this appeal, brought by the non-profit association ‘Advocaten voor de wereld’, including the use of a Framework Decision and the principle of the legality. In its judgment of 13 July 200560, the Constitutional Court held that some of the grounds put forward related to the validity of the Framework Decision itself. It therefore decided to refer two questions to the Court of Justice for a preliminary ruling: one was the question of whether the Framework Decision on the European arrest warrant is compatible with Article 34(2)(b) of the Treaty on European Union, under which Framework Decisions may be adopted only for the purpose of approximation of the laws and regulations of the Member States; and the other was whether Article 2(2) of the Framework Decision, in so far as it sets aside verification of the requirement of double criminality for the offences listed therein, is compatible with Article 6(2) of the EU Treaty and, more specifically, with the principle of legality in criminal proceedings and with the principle of equality and non-discrimination guaranteed by that provision.

8.1.2 Judgment of the Court of Justice

These two questions were resolved by Advocate General Ruiz-Jarabo Colomer in his opinion of 12 September 2006, and subsequently, succinctly, by the Court of Justice itself which, in its judgment of 3 May 2007, upheld the validity of the Framework Decision.

Regarding the question of the compatibility of the Framework Decision with Article 34(2)(b), the Court stated that ‘the mutual recognition of the arrest warrants issued in the different Member States in accordance with the law of the issuing State concerned requires the approximation of the laws and regulations of the Member States with regard to judicial cooperation in criminal matters and, more specifically, of the rules relating to the conditions, procedures and effects of surrender as between national authorities’61. It went on to state that there is nothing to justify the conclusion that the approximation of the laws and regulations of the Member States through the adoption of framework decisions is directed only at the Member States’ rules of criminal law, that is to say, those rules which relate to the constituent elements of criminal offences and the penalties applicable. It therefore considered that Article 34(2) EU cannot be construed as 59 Cf. CJEU, 3 May 2007, Advocaten voor de wereld, Case C-303/05.60 Judgement No 124/2005 www.arbitrage.be 61 Cf. paragraphs 29 and 30.43/65

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meaning that the approximation of the laws and regulations of the Member States by the adoption of a framework decision cannot relate to areas other than those mentioned in Article 31(1)(e) EU and, in particular, the matter of the European arrest warrant. Regarding the question of whether the Council should have relied on a convention (pursuant to the principle of congruent forms), or on a Framework Decision, the Court declared that ‘while it is true that the European arrest warrant could equally have been the subject of a convention, it is within the Council’s discretion to give preference to the legal instrument of the framework decision in the case where, as here, the conditions governing the adoption of such a measure are satisfied’62.

Regarding the second question on the compatibility of Article 2(2) of the Framework Decision to the extent that it dispenses with verification of double criminality for the categories of offences mentioned therein with Article 6(2) EU, the Court first examined its conformity with the principle of the legality of criminal offences and penalties. Having briefly stated the content of this principle, the Court pointed out that the Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract. While Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continues to constitute matters determined by the law of the issuing Member State. It follows, therefore, that the aforesaid Article does not infringe the principle of the legality of criminal offences and penalties.63

The Court of Justice then examined the compatibility of Article 2(2) with the principle of equality and non-discrimination. It stated, with regard to the choice of the thirty-two categories of offences listed, that ‘the Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred [...], the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality’64. Consequently, according to the Court, even if one were to assume that the situation of persons suspected of having committed offences featuring on the list set out in Article 2(2) of the Framework Decision or convicted of having committed such offences is comparable to the situation of persons suspected of having committed, or convicted of having committed, offences other than those listed in that provision, the distinction is, in any event, objectively justified65. Furthermore, with regard to the fact that the lack of precision in the definition of the categories of offences in question risks giving rise to disparate implementation of the Framework Decision within the various national legal orders, the Court merely pointed out that it is not the objective of the Framework Decision to harmonise the substantive criminal law of the Member States and that nothing in the 3rd pillar of the EU Treaty makes the application of the European arrest warrant conditional on harmonisation of the criminal laws of the Member States within the area of the offences in question66. Consequently, Article 2(2) does not breach the principle of equality67.

62 Cf. paragraph 41.63 Cf. paragraphs 52 to 54.64 Cf. paragraph 57.65 Cf. paragraph 58.66 Cf. paragraph 59.67 Cf. paragraph 60.44/65

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8.2. SZYMON KOZLOWSKI CASE 68


In this case, two questions were referred to the Court of Justice by the Generalstaatsanwaltschaft Stuttgart in proceedings concerning the execution of a European arrest warrant. The EAW had been issued on 18 April 2007 by the Polish regional court of Bydgoszcz for the execution of a 5-month prison sentence handed down on 28 May 2002 by the local court of Tuchola against a person named Kozlowski, a Polish national in custody in Germany for the execution of a three-year prison sentence. The grounds for non-execution that the German judicial authority could have invoked included the possibility provided for in Article 4(6) of the Framework Decision on the European arrest warrant, whereby the executing judicial authority may refuse to execute a European arrest warrant if it has been issued for the purposes of executing a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law.

Both questions referred for a preliminary ruling related specifically to Article 4(6) of the Framework Decision. The aim of the first was to clarify the terms ‘staying’ and ‘resident’ in the executing State; the aim of the second was to determine whether a transposition of Article 4(6) – as had taken place in Germany – in such a way that the surrender of a national of the executing Member State against his or her will for the purposes executing a sentence is always impermissible, whereas extradition of the nationals (on the basis of a European arrest warrant) of other Member States against their will can be authorised at the discretion of the authorities, is compatible with Union law, in particular with the principle of non-discrimination and Union citizenship.


In its judgment of 17 July 2008, the Court of Justice answered only the first question Having stated that the definition of the terms ‘staying’ and ‘resident’ ‘cannot be left to the assessment of each Member State’ but must be given an autonomous and uniform interpretation69, the Court explained the procedure to be followed in applying Article 4(6). It distinguished between two steps: the executing judicial authority must initially ascertain whether the person concerned is a national or a ‘resident’ of the executing Member State, or is ‘staying’ there, within the meaning of the aforesaid Article. Second, if the executing judicial authority finds that that one of the above terms applies to the person in question, since that ground for refusal is in theory optional, it must assess whether there is a legitimate interest that would justify execution of the sentence imposed in the territory of the executing Member State. With regards to the first step, the Court explained that a person ‘resides’ in the executing Member State when he or she has established his or her actual place of residence there, and that he or she ‘stays’ there when he or she has acquired, ‘following a stable period of presence in that State, certain connections with that State which are of a similar degree to those resulting from residence’70. Since Szymon Kozlowski was not resident in Germany, it need only be established whether he was staying there. In order to

68 Cf. CJEU, 17 July 2008, Szymon Kozlowski, Case C-66/08.69 Cf. paragraphs 41-43.70 Cf. paragraph 46.45/65

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determine this, according to the Court, it is necessary to make an overall assessment of various objective factors characterising the situation of the requested person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State71. According to the Court, in the light of various factors referred to by the national court as characterising the situation of Mr Kozlowski, in particular the length and conditions of his stay, the absence of family ties and his very weak economic connections with Germany, he cannot be regarded as covered by the term ‘staying’ within the meaning of Article 4(6) of the Framework Decision72.

8.3. SANTESTEBAN GOICOECHEA CASE 73


This reference for a preliminary ruling brought by the Chambre de l’instruction (indictment division) of Montpellier Court of Appeal in the Santesteban Goicoechea case, concerning the interpretation of Articles 31 and 32 of the Framework Decision on the European arrest warrant.

In the case in question, Montpellier Court of Appeal was considering a request for extradition from the Spanish authorities regarding a person named Santesteban Goicoechea, a Spanish national, who was serving a prison sentence in France for membership of a criminal organisation. This request was based on the 1996 extradition convention, since it related to acts committed in February and March 1992; the European arrest warrant could not therefore be applied in this instance given that, according to its declaration made pursuant to Article 32 of the Framework Decision, France indicated that it would continue to deal with requests relating to acts committed before 1st November 1993 in accordance with the extradition system applicable before 1st January 2004.

Montpellier Court of Appeal referred two questions to the Court of Justice.

Since Spain, unlike France, had not made a declaration indicating that it would continue to apply the conventions applicable before the European arrest warrant came into force, the first question sought to determine whether the failure of a Member State to notify its intention to continue to apply bilateral or multilateral agreements precludes that Member State from using, with another Member State (in this case France) which has made a declaration under Article 32 of the Framework Decision, procedures other than that of the European arrest warrant, in this instance the 1996 Convention.

Furthermore, since the 1996 Convention had not come into force in France until 1st July 2005, the second question referred by Montpellier Court of Appeal was whether that convention could apply to acts committed in 1992 even though it had only come into force in the executing State after 1st January 2004, the date on which the Framework Decision on the European arrest warrant came into effect pursuant to Article 32 of the Framework Decision.

71 Cf. paragraph 48.72 Cf. paragraph 53.73 Cf. CJEU, 12 August 2008, Santesteban Goicoechea, Case C-296/08 PPU.46/65

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With regard to the first question, according to the Court of Justice the 1996 Convention is not among the bilateral or multilateral agreements or arrangements mentioned in Article 31(2) of the Framework Decision for which notification could be possible74. The lack of notification by Spain therefore has no effect on the continuance of the conventions concluded before the European arrest warrant came into force or on the possibility of this Member State making use of them in its relations with other Member States. Moreover, as stated in Article 31(1), the fact that the European arrest warrant in principle replaces the earlier conventions does not entail the abolition of those conventions. These conventions continue to apply where a Member State, such as France, has restricted the temporal scope of the European arrest warrant, and in other situations where the European arrest warrant system would not be applicable75. The CJEU concluded that Articles 31 and 32 of the Framework Decision refer to distinct situations which are mutually exclusive. While Article 31 deals with the consequences of the application of the European arrest warrant system for international conventions in the field of extradition, Article 32 envisages a situation in which that system does not apply. Consequently, ‘Article 31 of the Framework Decision must be interpreted as referring only to the situation in which the European arrest warrant system is applicable, which is not the case where a request for extradition relates to acts committed before a date specified by a Member State in a statement made pursuant to Article 32 of the Framework Decision’76.

With regard to the second question, concerning the effect of pre-existing instruments, the objective of enhancing judicial cooperation and the need to avoid a legal vacuum, the Court concluded that, where the European arrest warrant system is not applicable, Article 32 of the Framework Decision does not oppose application by an executing Member State of an extradition convention such as the 1996 Convention, even if this only became applicable after 1st January 200477.

8.4. LEYMANN AND PUSTOVAROV CASE 78


A request for a preliminary ruling was also referred to the Court of Justice by the Korkein oikeus (Finnish Supreme Court) as part of criminal proceedings instituted in Finland against Leymann and Pustovarov, charged with a serious drugs-related offence and surrendered to the Finnish authorities by the Polish and Spanish authorities respectively. This was in execution of European arrest warrants issued for, inter alia, having smuggled into Finland, with the aid of accomplices, a large quantity of amphetamines with the intention of reselling them. Having been prosecuted and convicted for smuggling a large quantity of hashish, rather than amphetamines, with a view to its resale, the two persons filed an appeal against their conviction at the first instance court and subsequently an appeal to the Finnish Supreme Court against the decision upholding their conviction. The Supreme Court referred three questions to the Court of Justice

74 Cf. paragraph 56.75 Cf. paragraph 58.76 Cf. paragraph 63.77 Cf. paragraph 81.78 Cf. CJEU, 1st December 2008, Leymann and BB10ovarov, Case C-388/08 PPU.47/65

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concerning the interpretation of Article 27(2) to (4) of the Framework Decision on the European arrest warrant, in its provisions relating to the principle of speciality.


In its judgment of 1st December 2008, the Court began by examining the first question in order to identify the relevant criteria for determining whether the surrendered person is being prosecuted for an ‘offence other’ than that for which the person was surrendered within the meaning of Article 27(2) of the Framework Decision, requiring implementation of the consent procedure referred to in Article 27(3)(g) and 27(4). On the basis of the Framework Decision’s aims of speeding up and simplifying judicial cooperation between the Member States, the Court answered this first question by advocating a degree of flexibility. Accordingly, it held that the description of the offence in the European arrest warrant must be compared with that in the later procedural document, and that it must be ascertained whether the constituent elements of the offence, according to the legal description given by the issuing State, are those for which the person was surrendered and whether there is sufficient correspondence between the information given in the arrest warrant and that contained in the later procedural document. Modifications concerning the time or place of the offence are allowed, in so far as they derive from evidence gathered in the course of the proceedings conducted in the issuing State concerning the conduct described in the arrest warrant, do not alter the nature of the offence and do not lead to grounds for non-execution under Articles 3 and 4 of the Framework Decision79.

The Court of Justice then turned its attention to the second question, namely whether a modification of the description of the offence, concerning only the kind of narcotics in question and not changing the legal classification of the offence, is such as to define an ‘offence other’ than that for which the person was surrendered within the meaning of Article 27(2) of the Framework Decision, and makes it necessary to have recourse to the consent procedure referred to in Article 27(3)(g) and 27(4). The Court dealt with this question swiftly, holding that, in circumstances such as those in the main proceedings, a modification of the description of the offence concerning the kind of narcotics concerned is not such, of itself, as to define an ‘offence other’ than that for which the person was surrendered. However, the offence concerned is still punishable by imprisonment for a maximum period of at least three years and comes under the rubric ‘illegal trafficking in narcotic drugs’ in Article 2(2) of the Framework Decision80.

Finally, even though it does not arise unless an ‘offence other’ than the one for which a person has been surrendered has been referred to the competent judicial authorities, the third question was examined by the Court of Justice. This question seeks to determine how the exception to the specialty rule in Article 27(3)(c) of the Framework Decision should be interpreted, taking into account the consent procedure laid down in Article 27(4) of the Framework Decision. In particular, it asks whether those provisions permit a person to be prosecuted and sentenced for an ‘offence other’ than that for which he was surrendered, requiring the consent of the executing Member State, before that consent has been received, in so far as his liberty is not restricted. It also asks whether the fact that the person concerned is, in addition, detained on the basis of other charges providing a lawful basis for his detention affects the possibility of prosecuting and

79 Cf. paragraphs 55 to 59.80 Paragraphs 62 and 63.48/65

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sentencing him for that ‘other offence’. Under consideration, the Court answered that the exception provided for in Article 27(3)(c) of the Framework Decision must be interpreted as meaning that, where there is an ‘offence other’ than that for which the person was surrendered, consent must be requested, in accordance with Article 27(4) of the Framework Decision, and obtained if a penalty or a measure involving the deprivation of liberty is to be executed. The person surrendered can be prosecuted and sentenced for such an offence before that consent has been obtained, provided that no measure restricting liberty is applied during the prosecution or when judgment is given for that offence. The exception in Article 27(3)(c) does not, however, preclude a measure restricting liberty from being imposed on the person surrendered before consent has been obtained, where that restriction is lawful on the basis of other charges which appear in the European arrest warrant81.

8.5 WOLZENBURG CASE82

8.5.1. Legal background

The reference for preliminary ruling was made by the International Rechtshulpkamer of the Rechtbank Amsterdam (Chamber for International Cooperation in legal matters of the Amsterdam District Court) concerning a European arrest warrant issued by Germany for several offences, including importing marijuana, against a German national who had lived and worked in the Netherlands for one year, but who did not hold a residence permit of indefinite duration. The referring court submitted several questions, including whether it could be considered that a person stayed or resided in the executing Member State as soon as they lawfully remained there on the basis of Article 18 EC. If this was not the case, the Amsterdam court asked whether they needed to remain there for a duration determined by the executing Member State, and if yes, under what conditions and what supplementary administrative requirements may be imposed to lay down this duration. Pursuant to Directive 2004/38, nationals of other Member States may obtain a residence permit of indefinite duration from the Dutch administrative authorities if they reside in the Netherlands for an uninterrupted period of 5 years. Finally, the referring court asked whether the principle of non-discrimination conflicts with national legislation, whereby the requirement that the surrender of a national must be refused where surrender is sought for the purposes of executing a sentence is extended only to nationals of other Member States who hold a residence permit of indefinite duration.

8.5.2. Judgment of the Court of Justice

The Court firstly stated that the principle of non-discrimination contained in Article 12 EC also applies in matters relating to the TEU83. It then stated that the issuance of a document certifying permanent residence for European Union citizens who have legally resided in the territory of another Member State for a continuous period of five years is not a mandatory formality. Such a

81 Cf. paragraphs 73 to 76.82 Cf. CJEU 6 October 2009, Wolzenburg, Case C-123/0883 Cf. paragraphs 43 to 47.49/65

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document has only declaratory and probative force; it does not give rise to any right84. The Court then examined the question of discrimination, and its reasoning, based on the objective of optimal reintegration into society led it to conclude that the principle of non-discrimination does not preclude the legislation of the executing Member State, under which the competent judicial authority of that State is to refuse to execute a European arrest warrant issued against one of its nationals with a view to the enforcement of a custodial sentence, whilst such a refusal is, in the case of a national of another Member State having a right of residence on the basis of Article 18(1) EC, subject to the condition that that person has lawfully resided for a continuous period of five years in that Member State of execution85.

8.6. I.B. CASE86


In a judgment of 16 June 2000, Bucharest Court sentenced I.B. to a 4-month prison sentence for trafficking in nuclear and radioactive materials, a judgment that was upheld by the Court of Appeal on 3 April 2001. These two courts authorised I.B. to serve his sentence at his place of work, rather than in custody. On 15 January 2002 the Supreme Court, ruling in absentia and without I.B. having been informed of the date and place of the hearing, quashed the earlier decisions and ordered that the sentence be served in custody. In February 2002, I.B. went to Belgium, where his family joined him in October of the same year. On the basis of an alert in the Schengen Information System (SIS), I.B. was arrested in Belgium on 11 December 2007 and Bucharest Court immediately issued a European arrest warrant. On 19 December 2007, I.B. lodged an application for the grant of refugee status in Belgium (an application that was still pending at the time of the CJEU’s judgment). Nivelles Court of First Instance ruled that the European arrest warrant fulfilled all the conditions and was enforceable. It held that I.B. could not serve his sentence in Belgium, since this option was only available in respect of convictions with res judicata force, which was not the case. I.B. therefore had the right to request a retrial. Furthermore, the provision of Belgian law whereby surrender for the purposes of prosecution can be subject to the condition that person be returned to Belgium after being heard was not applicable either, because Article 7 of the Belgian law provides that an arrest warrant based on a judgment rendered in absentia is considered as having been issued for the purposes of executing a sentence. The Court consequently referred to the Constitutional Court the question of whether these provisions were compatible with constitutional provisions relating to the principles of equal treatment and non-discrimination. The Court, holding that the Belgian law merely sought to implement the FD on the European arrest warrant, decided to ask the CJEU the question of whether a European arrest warrant based on a judgment in absentia imposed under these conditions should not be considered a warrant issued for the purposes of executing a sentence within the meaning of Article 4(6) of the FD, but an arrest warrant for the purposes of prosecution within the meaning of Article 5(3). If this was not the case, the Court asked whether these provisions should be interpreted as not permitting the surrender to be subject to the person’s return to Belgium in such circumstances and, conversely, whether they contravened the principle of equal treatment enshrined in Article 6(2) TEU. Finally, if the answer to the 1st

84 Cf. paragraphs 51 to 53.85 Cf. paragraphs 67 to 74.86 Cf. CJEU 21 October 2010, I.B., Case C-306/0950/65

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question was negative, the Court asked whether the provisions of the FD enumerating the grounds for refusal prevented the warrant from being executed if there were valid grounds for believing that its execution would have the effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6(2) TEU.


The Court noted, firstly, that the application for refugee status could have no bearing on the answers to the questions referred by the referring court87. Later, recalling that the aim of Articles 4(6) and 5(3) of the FD is to place particular importance on the possibility of increasing the chances of the requested person’s social reintegration, it deemed that there is nothing to indicate that the European Union legislator wished to exclude requested persons from that aim on the basis of a sentence rendered in absentia. It instead concluded that the situation of a person who has been sentenced in absentia and to whom it is still open to apply for a retrial is comparable to that of a person who is the subject of a European arrest warrant for the purposes of prosecution, and that there is no objective reason preventing an executing judicial authority which has applied Article 5(1) of Framework Decision 2002/584 from applying the condition contained in Article 5(3) of that Framework Decision. Such an interpretation is also the only one that, currently, offers a real possibility of reintegrating into society88. This conclusion meant that the court did not answer the last two questions submitted by the referring court.

8.7. MANTELLO CASE89


The reference was made by the Oberlandesgericht Stuttgart (higher regional court) (Germany), in proceedings concerning the execution of a European arrest warrant issued by the Tribunale di Catania against G. Mantello, an Italian citizen resident in Germany for the purposes of prosecution for participation in a criminal organisation active in cocaine trafficking between January 2004 and November 2005 (punishable by 20 years’ imprisonment under Italian law) and for selling cocaine to third parties (punishable by 8-20 years’ imprisonment), with the aggravating circumstance that the drug was supplied to a minor. It emerged, however, that on 30 November 2005, Mantello had already been convicted for importation and possession of drugs with a view to resale on 13 September 2005, a sentence upheld by the Corte d’Appello di Catania (court of appeal) in April 2006. The sentence was later reduced and then served. The Oberlandsgericht Stuttgart therefore asked the Tribunale di Catania whether the judgment of 2005 prevented further prosecution. In April 2009, the latter finally answered that this was not the case. Considering that, at the time, the prosecuting Italian authorities already had sufficient evidence to prosecute Mantello for participation in a criminal organisation, the Oberlandesgericht Stuttgart asked the Court of Justice whether the concept of ‘same acts’ should be defined according to the law of the issuing Member State or that of the executing Member State, or according to an autonomous interpretation based on the law of the European

87 Cf. paragraphs 44 to 46.88 Cf. paragraphs 52 to 58.89 Cf. CJEU 16 November 2010, Mantello, Case C-261/0951/65

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Union. In particular, it asked, in a situation where, at the time of the conviction for unlawful importation of narcotics, the investigating authorities had information and evidence which supported a strong suspicion of participation in such an organisation, but for tactical reasons relating to their investigation did not submit the relevant information and evidence to the court and to institute criminal proceedings on that basis, whether this unlawful importation did not constitute the ‘same act’, within the meaning of Article 3(2) of the Framework Decision, as participation in an organisation whose purpose is drugs trafficking.


The Court declared that the concept of ‘same acts’ cannot be left to the discretion of the judicial authorities of each Member State 90 , and added since that Article 54 of the Convention Implementing the Schengen Agreement (CISA) and Article 3(2) shared the same objective, an interpretation of that concept given in the context of the CISA is equally valid with regards to the European arrest warrant 91 . The Court considered, however, that rather than questioning whether or not the acts that resulted in the previous conviction are the same acts as those for which the European arrest warrant was issued against Mantello, the referring court sought to establish whether the previous judgment has res judicata force in respect of the acts alleged in the new proceedings, given that the authorities responsible for the investigation held certain information but, for tactical reasons, did not submit this to the Tribunale di Catania. However, the ‘final’ nature of a judgment for the purposes of Article 3(2) of the Framework Decision is determined by the law of the Member State where this judgment was delivered92. Therefore, since the Oberlandsgericht requested information from the issuing authority regarding the final nature of the November 2005 decision in respect of the alleged acts in the new proceedings, and received a negative response, it must draw the appropriate conclusions from the assessments made by the issuing judicial authority in its response93.

8.8. MELVIN WEST CASE94


The application was made by the Korkein oikeus in a case involving three successive arrest warrants. The requested person had initially been surrendered by the British authorities to Hungary, where Mr West was sentenced for theft and destruction of ancient works of great value. The UK granted its consent, pursuant to Article 28(3) of the FD on the EAW, to Mr West’s surrender from Hungary to Finland, where he had been convicted of similar offences. The Finnish authorities then wished to execute an EAW issued by FR, where he had been convicted of acts of theft at the French national library. HU gave its consent, but the UK was silent. The Korkein oikeus questioned the objective pursued by this provision of Article 28(3) and the issue

90 Cf. paragraph 38.91 Cf. paragraph 40.92 Cf. paragraphs 43 to 46.93 Cf. paragraphs 49 to 51.94 Cf. CJEU 28 June 2012, Melvin West, Case C-192/12 PPU52/65

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of whether the UK retained its right to consent even after Mr West was surrendered by HU to FIN.


The Court considered it appropriate to consider the wording of the provision and the objective pursued by the DC. With regards to that wording, it observed that the term ‘executing Member State’ is used repeatedly in Article 28 and that its meaning is the same every time: it is the Member State which executed the European arrest warrant on the basis of which the person concerned was surrendered to that issuing Member State and which confers on the latter the power to surrender that person, as executing Member State, to another Member State95. As to the objective pursued, it is to facilitate and accelerate judicial cooperation. Requiring consent from both the first and the second executing MS could complicate the execution of an EAW, for example, by generating multiple requests for supplementary information, or may increase the possibility of divergent decisions96. Only requiring the consent of the first executing MS would achieve the objective of simplicity, but this MS could in any case refuse execution of the first EAW or the first subsequent surrender, for example to invoke Articles 4(6), and 5(3) of the FD for the benefit of a person who is a national or resident of that State97. Furthermore, a direct and immediate relationship between the second and third executing MS is (more) likely to facilitate judicial cooperation between those two MS98. The Court concluded that Article 28(2) of the Framework Decision must be interpreted as meaning that, where a person has been subject to more than one surrender between Member States pursuant to successive European arrest warrants, the subsequent surrender of that person to a Member State other than the Member State having last surrendered him is subject to the consent only of the Member State which carried out that last surrender99.

8.9. LOPES DA SILVA CASE100


The question for preliminary ruling was referred by Amiens Court of Appeal, which had to rule on the execution of an EAW issued by the court of Lisbon against a Portuguese national residing in France, where he had got married, for the purposes of serving a 5-year prison sentence for drugs trafficking. The French implementing law provides that the execution of an EAW may be refused if the person is of French nationality and the French authorities undertake to execute the sentence themselves. Mr Lopes Da Silva argued that his surrender to the Portuguese authorities would disproportionately infringe his right to respect for private life, and that the provision in question, insofar this right to refuse surrender is available only to French nationals, was an incorrect implementation of the FD and, additionally, discriminatory contrary to Article 18 TFEU. For its part, FR argued that the grounds provided for in Article 4(6) of the FD were optional, and also subject to the undertaking to execute the sentence itself under domestic 95 Cf. paragraph 51.96 Cf. paragraph 58.97 Cf. paragraphs 69 and 75.98 Cf. paragraph 60.99 Cf. paragraph 80.100 Cf. 5 September 2012, Joao Pedro Lopes Da Silva Jorge, Case CJEU C-42/1153/65

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law. However, French law did not at the time provide for an undertaking to execute a sentence handed down against a non-national, since FR had not ratified the convention of 28 May 1970 on the international validity of criminal judgments, nor that of 13 November 1991 on the enforcement of foreign criminal sentences, and had not yet implemented FD 2008/909/JHA on the mutual recognition of custodial sentences.


The Court first noted that MS have some margin of discretion in implementing Article 4(6) of the FD and that an executing Member State may only legitimately pursue such an objective with regards to persons who have demonstrated some degree of integration into the society of that State101. Furthermore, it underlined that in implementing this provision into their domestic law, they are required to comply with Article 18 TFEU, and that under these conditions it cannot be accepted that a requested person who is not a national of the executing Member State but who has stayed or resided there for a certain period would never be likely to have established any binding connections with that State that could justify invoking this ground for optional non-execution102. It further stated that although Article 3(1) a) of the Convention on the Transfer of Sentenced Persons allows a State that is a party to that convention to limit to its own nationals the possibility of a sentence imposed in another State being enforced within its territory, neither that convention nor any other rule of international law requires those States to make provision for such a rule103. Therefore, the alleged impossibility of undertaking to execute the sentence handed down against a non-national cannot justify discriminatory treatment: although a Member State may, in transposing Article 4(6), decide to limit the situations in which its executing judicial authority may refuse to surrender a person who falls within the scope of that provision – thereby reinforcing the system of surrender in accordance with the principle of mutual recognition – it cannot exclude automatically and absolutely the nationals of other Member States staying or resident in its territory, irrespective of their connections with it104. In application of the principle of conforming interpretation, the referring court must also take into consideration the principles and provisions of domestic law governing the conclusions a court is entitled to draw from the existence of discrimination prohibited under that law, and in particular those that allow that court to alleviate such discrimination until the legislature has taken the measures necessary to eliminate it105.

101 Cf. paragraph 33.102 Cf. paragraphs 39 and 41.103 Cf. paragraph 47.104 Cf. paragraph 52.105 Cf. paragraphs 57 and 60.54/65

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9. Practical tips

9.1. AS AN EXECUTING AUTHORITY

What should you do when faced with a national implementing law that is not in conformity with the Framework Decision of 13 June 2002? Try, pursuant to the case-law of the Court of Justice in the Pupino106 case, to apply it as consistently as possible with the spirit and letter of the EU instrument. It may be necessary to stay proceedings and refer a question for a preliminary ruling to the Court of Justice of the European Union so that it can interpret the Framework Decision. Where appropriate, its response should enable you to draw the relevant conclusions domestically. Note, however, that a preliminary ruling procedure before the CJEU lasts an average of 20 months. This is one of the reasons why so few references for preliminary rulings have been made to the Court. Due to growing awareness of this within the EU, and indeed within the CJEU itself, an urgent preliminary ruling (PPU) procedure has been established. The PPU has been effective since 1st March 2008 (see Module 3). What should you do if you receive a European arrest warrant issued by an issuing authority within a Member State that shows a lack of confidence towards or is reluctant comply with the Framework Decision? Do not apply the principle of reciprocity! Its existence is now redundant within the European Union. It goes against the principle of mutual recognition and the case-law of the Court of Justice of the European Union in the Pupino case. One good example to follow is the approach adopted by the Portuguese Supreme Court, which upheld a judgment of Evora Court of Appeal granting the surrender of a Portuguese national to the Spanish authorities for the purposes of enforcing a three-year prison sentence. Even though it recognised that, if the situation were reversed, the Spanish authorities would not have surrendered their national to the Portuguese authorities, the Portuguese court took the view that absence of reciprocity cannot be an obstacle to cooperation within the European Union107.

9.2. AS AN ISSUING AUTHORITY What should you do when faced with an executing authority that is not complying with the Framework Decision?

If it is an isolated case, the first step should be to try to resolve the problem through direct contact with the executing judicial authority. If this direct contact proves unsuccessful, the European Judicial Network contact points can be approached. Where appropriate, the central authorities of the executing State, where these are represented among the contact points, will be notified. If this fails, the national member of Eurojust can be approached and, if this still does not work, the College of Eurojust can be called upon.If the problems recur, it may be appropriate to refer the matter to your government, which will be able to notify and discuss the problems direct with the ‘executing’

106 Cf. the judgment of the CJEU of 16 June 2005, Pupino case, C-105/03 ‘The national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision’.107 Decision of the Portuguese Supreme Court No 4738/2004 of 13 January 2005.55/65

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government. One solution to this may be to organise bilateral meetings. If this also fails, the government may notify the institutions responsible for evaluations about the problematic situation (the Commission and the Council).

56/65

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10. Case studies

Case study 1: the Battisti case

In 1993, Cesare Battisti, the former leader of an Italian far-left group, was sentenced in his absence to life imprisonment by Milan Assize Court. He was found guilty of four murders committed in the late 1970s. He was granted political asylum in France, where he wrote novels and earned his living as a caretaker. He benefited from the ‘Mitterrand doctrine’, a policy established by the former French President that granted asylum to Italian far-left terrorists provided that they renounced violence. The French authorities therefore rejected requests for Mr Battisti’s extradition on several occasions.

In June 2004, following a new Italian request, the trial chamber of Paris Court of Appeal ruled in favour of extradition. On 21 August 2004, Cesare Battisti failed to report to the police as required under the conditions of his parole, and was declared as having absconded. He was arrested on 18 March 2007 in Brazil.

Questions

1. Could a ‘Mitterrand doctrine’ still be conceivable in the current framework of the European Union?

The European arrest warrant overhauls the traditional extradition procedure: it has judicialised it, eliminating the ‘political phase’ – the government intervention phase characteristic of the conventional procedure – and in principle it no longer allows any political interference in the processing and execution of surrender requests on the basis of a European arrest warrant. It must therefore be concluded that a policy such as the ‘Mitterrand doctrine’ could no longer be conceivable in the current framework of judicial cooperation between the Member States of the European Union.

2. Could the Italian authorities have issued a European arrest warrant to circumvent the application of the ‘Mitterrand doctrine’?

France made use of the option available pursuant to Article 32 of the Framework Decision on the European arrest warrant and declared that this would not be applicable in relations with France, for acts committed before 1993. One of the reasons for this declaration was specifically to prevent old cases of this kind from falling within the scope of the European arrest warrant.

Case study 2: the Rezala case57/65

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Sid Ahmed Rezala, a 20-year-old French national, was convicted of three murders committed in France in 1999. Having fled to Portugal, he was arrested in the suburbs of Lisbon. He was imprisoned in Portugal, where the Portuguese authorities rejected a request for extradition on grounds that Rezala risked life imprisonment in France. The Portuguese Constitution does not permit the extradition of a person who would incur a prison sentence of over thirty years in the requesting country. Rezala committed suicide in prison before being tried or extradited.

Questions:

1. What should have been the Portuguese court’s decision if the request for Rezala’s surrender had been based on a European arrest warrant?

In the current framework of the European arrest warrant, there is no option for the executing State, in this case Portugal, to reject a request for surrender on the grounds that the national law of the issuing Member State (France) provides for a ‘life sentence’ or lifetime imprisonment in its legislation. Nevertheless, as provided for by Article 5.2 of the Framework Decision, the Portuguese authorities may make it a condition of the surrender that the person is entitled to a periodic review of his personal situation that might allow a revision of the penalty imposed – this can either be on request or at the latest after 20 years of the sentence – or for the application of measures of clemency provided for in the issuing Member State.

Case study 3

On 25 February 2003, A left Albania and illegally docked in Italy on a boat owned by his brother-in-law B, who had Italian nationality. The boat was intercepted by an Italian Customs patrol. A was sent back to Albania. B was charged in Italy with ‘facilitation of unauthorised entry and residence’. B left Italy before being arrested.

An Italian court issued a European arrest warrant against B.

Questions:

Based on the following assumptions:

1. Since the Italian court does not know where B is located, how will it disseminate the European arrest warrant?

Article 9.2 of the Framework Decision provides for the dissemination of an alert for a requested person in the Schengen Information System (SIS). This alert is equivalent to a

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European arrest warrant pending receipt of the original in due and proper form by the executing judicial authority. The period for the transmission of the original varies depending on the State (a table listing these periods is available in this module). This arrangement is transitional, until such time as the SIS is capable of transmitting all the information required (Article 8 of the Framework Directive). For Member States not yet connected to the SIS, dissemination must continue via the traditional mechanisms such as Interpol (Article 10.3 of the Framework Directive). There is, moreover, no reason why Member States connected to the SIS should not use the Interpol as well. This is usually the case since it is possible that the person concerned might be located outside EU territory.

2. If the Italian court knows that B has fled to Brussels, to the home of one of his former business associates, can it send the arrest warrant directly to a local judicial authority in Brussels?

The Italian court may in fact send the European arrest warrant to the judicial authority with local jurisdiction in the executing State (Article 9.1 of the Framework Directive).

To identify this authority, the Italian court will use the Atlas available on the European Judicial Network website: http://www.ejn-crimjust.eu.int/eaw_atlas.aspx 108. Simply enter the postcode for the location (in this case 1000) to obtain a series of information:

a. the authority to which the European arrest warrant should be sent is the Crown Public Prosecutor in Brussels (the website provides particulars such as the postal address and telephone number)

b. the details (address, telephone number, e-mail) of various authorities are also listed:

the federal prosecution office, as the authority to contact in urgent cases the Ministry of Justice, as the contact authority regarding arrangements

for the person’s transit etc.

Although the new procedure has been judicialised, Member States may designate one or more ‘central authorities’ to assist the competent judicial authorities (Article 7 of the Framework Decision). The tasks assigned will, however, be purely administrative. These central authorities may not take part in reaching the decision on the European arrest warrant (unless the Framework Decision is otherwise transposed).

B has been arrested by the Belgian Police on the basis of the European arrest warrant. Under Belgian law, facilitation of unauthorised entry and residence is a criminal offence only if the act has been committed for profit, a limitation authorised by the FD on the facilitation of unauthorised entry and residence109. There is nothing to indicate that this is the case here.

Questions:

108 Note to trainers: as far as possible, demonstrate how to use the website during the training session.109 Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ L 328, 5 December 2002, p. 1).59/65

http://www.ejn-crimjust.eu.int/eaw_atlas.aspx

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1. What approach should a Belgian investigating court adopt regarding the request for surrender to the Italian authorities?

In accordance with Article 2.2 of the Framework Decision, the traditional requirement of double criminality has been abolished for 32 categories of offence exhaustively enumerated, provided that these offences are punishable in the issuing Member State by a penalty of a maximum period of at least 3 years. Accordingly, European arrest warrants issued for alleged or proven offences included in that list must be executed by the arresting State without verification of criminality in that State. The only verification will be the minimum threshold of the requested penalty. For offences other than these, double criminality may be verified and surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State (Article 2.4 of the Framework Directive).

In the case in question, facilitation of unauthorised entry and residence is included in the list of offences for which the double criminality requirement has been abolished, provided it is punishable by a maximum period of at least 3 years in IT (issuing MS). This information must be stated in the EAW (box c) of the form). The Belgian investigating judge cannot therefore refuse execution of the European arrest warrant on this basis.

2. Would it be different if the boat had docked in Greece (where Italy has been informed and is prosecuting B on the basis of active nationality jurisdiction, since B has Italian nationality)?

Article 4.7 of the Framework Decision states that grounds for optional refusal may be based on the ‘territoriality clause’. It states that execution of the arrest warrant may be refused where it relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory.

In this case study, the 1st scenario would not be applicable, since the offence was not committed in Belgium (the executing State). As regards the 2nd scenario, since the acts were committed in Greece, it should be verified whether Belgian law authorises prosecution for the same offences committed outside its territory, which is probably not the case, since the offence was not committed for profit.

Case study 4

A Belgian court issued a European arrest warrant against X in a fraud case. The Italian court refused to execute the EAW on the basis of its implementing law, which states that the warrant cannot be executed if the law of the issuing State does not provide for a fixed time limit for pre-trial detention.60/65

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Questions

1. What do you think of this ground for refusal?

This ground is not one of the grounds for refusal authorised by the FD. Italian law is inconsistent with the EU instrument. The case-law of the House of Lords, which set aside the requirements of national law not provided for by the FD, is an instructive example.110.

2. What is the Italian court’s margin of manoeuvre?

The Italian court should ensure that the requirements of its legislation are interpreted as consistently as possible with the provisions of the FD111. It could make inquiries with the Belgian issuing authority regarding the conditions under which a period of pre-trial detention is extended and seek guarantees of review from its counterpart. It could ask the CJEU whether the FD can be interpreted as authorising refusal to execute an EAW when the law of the issuing country does not fix a time limit for pre-trial detention.

Case study 5

X, residing in Brussels, is a suspect in a case that is under investigation in Austria. On 15 September 2006, the competent court in Vienna rejected the prosecutor's request to place X in pre-trial detention during the investigation. The prosecutor filed an appeal against this decision and obtained a new decision on 28 September 2006 granting the request for pre-trial detention. During the appeal process, X was not consulted: this was not provided for by the Code of Criminal Procedure at the time. However, it was generally accepted in Austria that this provision should be amended, and a new law was adopted on 15 November of the same year. In addition, evidence provided suggested that X was considered guilty even before the trial, and that the investigating judge was the same person who acted as prosecutor. An Austrian judge issued an EAW against X and sent it to the prosecutor in Brussels, where X was arrested. The competent court took the decision to execute the EAW. X appealed against this decision and applied for non-execution on the basis of Article 5(4) of the Belgian implementing law, which provides that execution of an EAW must be refused ‘if there are valid grounds for believing that the European arrest warrant would have the effect of infringing the fundamental rights of the person concerned, as enshrined by Article 6 of the Treaty on European Union’. The indictments chamber in Brussels agreed with the defendant’s reasoning and decided not to execute the EAW.

Question

1. What do you think of this ground for refusal?

110 See, for example, the judgment of 17 November 2005, Office of the King’s Prosecutor Brussels v Cando Armas and the judgment of 27 February 2007, Dabas v High Court of Justice.111 Cf. the Pupino judgment.61/65

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The FD contains no explicit ground for refusal relating to fundamental rights. Recital 12 mentions this, but is not part of the instrument itself. However, most Member States have introduced a clause similar to that contained in Article 4(5) of the Belgian law. In practice, this amounts to a strong presumption that fundamental rights are de facto respected in all Member States: it must nevertheless be questioned whether, firstly, the court of the executing Member State is well placed to assess potential infringements (is there convincing evidence that this is not the case here?), and secondly whether any infringements can be corrected in the issuing Member State112.

Case study 6

X was charged with drug trafficking in Italy, where the acts, committed in February 2006, are punishable by imprisonment of up to 10 years. A court in Rome decided in March 2008 to issue an EAW against X. Checking the database for ongoing proceedings, it found that X had also been charged with a speeding offence punishable by up to 6 months. It decided to insert the two offences in the EAW. X lives in Nicosia (CY). The court issuing the warrant sent it to the Cypriot Central Authority, the Ministry of Justice. The central authority sent additional requests to the issuing authority concerning the following questions:

- why has such a long time elapsed between the acts and the EAW?- had X already been convicted in the past for similar acts?

Questions

1. Is the central authority well-placed to ask these questions?

By sending the questions to the issuing authority direct, the central authority is going beyond its support and facilitation remit. The FD provides for direct contact between the executing and issuing authorities. In addition, the answers to these questions should have no impact on the decision on whether to execute the EAW. At most, it might ask whether there is any statute of limitations under Cypriot law, but only if Cyprus has jurisdiction in respect of the acts.

The court in Rome provided the requested information. The central authority transmitted the EAW to the executing authority, which decided to execute it for drug trafficking, but not for the traffic offence.

2. Is this decision consistent with the FD?

The traffic offence punishable by 6 six months’ imprisonment is outside the scope of the FD. The FD contains no provision regarding accessory surrender. Even under the extradition procedure of the 1957 Convention, extradition for such offences was optional. Furthermore, the situation is not included in the exceptions to the speciality rule listed in

112 Cf. the judgment of the CJEU in Joined Cases N.S. and M.E. (see above), and the judgments of the EU Court HR in the M.S.S. v Belgium and Greece, and Stapleton v Ireland cases (see above).62/65

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Article 27 of the FD. Therefore, the decision of the Cypriot court is correct and, unless X has renounced the speciality rule or remains in Italy for more than 45 days after his final discharge (Article 27(3) a) and f)), he cannot be prosecuted for speeding.

Case study 7

During a police operation at a nightclub in Warsaw, X is found in possession of 0.5 grams of cannabis. He is charged with possession of illegal drugs. In PL, the maximum penalty for this offence is two years in prison. X, who lives in Hamburg (DE), is not arrested but does not respond to summons during the investigations. At the request of the prosecutor of Warsaw, a Polish court issues an EAW and transmits it to the judicial authorities of Hamburg. The competent prosecutor in Hamburg refuses to execute the warrant on the grounds that EAW would never be issued in DE for acts of this magnitude, based on the principle of proportionality.

Question

1. Is this decision of refusal consistent with the FD?

Refusal may be based on the fact that these acts would not be punishable in DE, if on the one hand the EAW is not issued for drug trafficking, but mere possession. Even if it was for drug trafficking, the penalty would be less than three years, which does not meet the condition whereby the offences included in the categories listed in Article 2 of the FD are not subject to verification of double criminality. However, the executing authority does not have to carry out a review of proportionality, even though it is recommended that issuing authorities review whether or not an EAW should be issued from the perspective of proportionality.

2. What other approach could the German prosecutor have adopted?

The German prosecutor could propose that X be heard in Germany.

Case study 8: the Assange case

In August 2010, Swedish police questioned J. Assange in connection with a complaint of rape and sexual violence. He was not arrested and left the country for the United Kingdom, unaware that an EAW had been issued against him by the Swedish prosecutor and transmitted to the British central authority. The warrant concerns, inter alia, rape (described as sexual intercourse while the victim was asleep) and sexual violence (described as having unprotected sex without the consent of the partner).J. Assange responded to the summons from the competent court, which ordered his extradition (i.e. execution of the EAW; UK law has retained the old terminology). On appeal, J. Assange 63/65

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argued that (1) the EAW was not issued by a judicial authority, (2) that the acts as described do not correspond to the classifications used, (3) there is not yet any formal charge against him, (4) that, in any event, his surrender for such acts would be disproportionate.

Questions

1. Could J. Assange be tried in the United Kingdom?

Yes, but the executing authority cannot impose this on the issuing authority as an alternative to execution of the EAW and surrender.

2. What should we make of the arguments of the defence?

It is for each Member State to designate the issuing authorities, but these must be judicial authorities. Although several Member States do not have ‘prosecutors’, their status as a judicial authority independent of the executive power should not be challenged. Rape is one of the categories of offence where verification of double criminality is not required, provided that it is punishable in the issuing Member State by a maximum sentence of at least 3 years: it does not fall to the English court in this case to challenge the classification ascribed by the issuing authority. However, it may verify whether the act described as sexual violence would also be punishable in the UK. Nevertheless, it does not fall to the English court to examine whether these acts are proven. The requirement that the requested person must already have ‘accused’ status is an addition IN the UK’s implementing law that is not found in the FD. It should at least not afford it too strict an interpretation, which would inhibit the cooperation sought by the FD. The argument that the measure is disproportionate is not a ground for refusal either in the FD or in the implementing law in the UK.

The appeal was dismissed in July 2011 and on 30 May 2012, the decision to execute and surrender was upheld by the Supreme Court, which granted an additional two weeks for reopening the appeal on the basis of any new evidence submitted by the defence. On 14 June, this 2-week period expired and the appeal was not reopened. A few days later, J. Assange left the home where he had been placed under house arrest and took refuge at the Ecuadorian Embassy. He feared that Sweden would extradite him to the United States, where he could be prosecuted for espionage.

3. Could Sweden extradite J. Assange to the United States without the consent of the UK? What would be the competent authority in the UK for granting its consent?

According to Article 28 of the FD, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. This consent is given in accordance with the Conventions by which that Member State is bound, as well as its domestic law. This would not, therefore, be the judicial authority executing the EAW, but in all likelihood the Minister of Justice. Note that an agreement on extradition between EU MS and the US113 entered into force on 1st February 2009

113 Agreement on extradition between the European Union and the United States of America, OJ L 181, 19 July 2003, p. 2764/65

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and the bilateral agreements between the MS and the US have been amended accordingly.

The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.

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