European Arrest Warrant


The European Arrest Warrant is an arrest warrant valid throughout all member states of the European Union. Once issued, it requires another member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. It is a simplified cross-border judicial surrender method, and has replaced the lengthy extradition procedures that used to exist between member states. The EAW has been in force since 1 January 2004 in all Member States.
An EAW issued by one of the Member States is valid in the entire territory of the EU. The mechanism is based on the principle of mutual recognition. An EAW can be issued only for the purposes of conducting a criminal prosecution, or for enforcing a custodial sentence. It can be issued only for offences carrying a minimum penalty of one year or more in prison. Where the sentence has already been passed, an EAW can be issued only if the prison term to be enforced is at least four months long.
Considering the severe consequences an EAW can have, it should always be proportional to its aim. This means that the judicial authority issuing an EAW should always carry out a proportionality check, before deciding on whether to issue it in the first place. Such a check is carried out by considering several factors that can be used to determine whether issuing an EAW is justified.
The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised the previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary. Since it was first implemented in 2004 the use of the EAW has risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 15,200 in 2009, but dropped back to 10,400 in 2013.
Even though the system has reinforced the fight against organized crime, it is also considered "highly controversial" due to its potential for abuse. It, for instance, raises issues with constitutional law. Moreover, human rights organizations have expressed concerns about the imprisonment of innocent persons, the disproportionality of the EAW and violations of procedural rights.

Background

Measures which sought to harmonise extradition rules across EU member states date from the mid-1990s when the EU instituted two treaties under the Maastricht Treaty which sought to streamline existing extradition procedures under the European Convention on Extradition. In 1999, the European Council further proposed to abolish formal extradition procedures for sentenced persons. In 2001, the Chairman of the European Parliament's Committee on Citizens’ Rights and Freedoms, Justice and Home Affairs – MEP Graham Watson – piloted through Parliament an Own-Initiative Report calling for the creation of a European Arrest Warrant and proposing the structure and content of legislation to achieve it. The Report was adopted by Parliament on 5 September. Watson's initiative was welcomed by the EU's Justice and Home Affairs Commissioner, Antonio Vitorino. Its timing was propitious, since only six days later, in the immediate aftermath of the September 11 attacks in the United States, these far-reaching proposals were taken up by the European Commission, which made a formal legislative proposal to Council and Parliament. The political decision to adopt the EAW legislation was made at the Laeken European Council in December 2001, the text being finally agreed in June of the following year.
The European Arrest Warrant was established by an EU framework decision in 2002. Framework decisions were legal instruments of the third pillar of the European Community akin to directives and only take effect when implemented by EU member states by transposing them into their domestic law. The European Arrest Warrant replaced the 1957 European Convention on Extradition which had previously governed extraditions between most member states, and various legal instruments which had been adopted to streamline the process of extradition under the ECE such as the 1989 agreement on the simplification of the transmission requests for extradition, the 1995 Convention on simplified extradition procedure, the 1996 Convention on extradition between Member States, and the provisions of the Schengen Agreement regarding extradition.
The EAW Framework Decision came into force on 1 January 2004 in eight member states, namely Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden, and the United Kingdom. By 1 November 2004, all member states had implemented the legislation except Italy, which did so on 22 April 2005. Bulgaria and Romania implemented the Decision on their accession in 2007. When the UK exercised its opt-out from the area of freedom, security and justice in 2014, its request to continue participating in the EAW was approved.

Distinctive features

There are several features of the European Arrest Warrant which distinguish it from the treaties and arrangements which previously governed extradition between EU member states. EAWs are not issued through diplomatic channels, they can be executed for a wide variety of offences without any requirement that the offence to which the warrant relates corresponds to an offence under the law of the state asked to execute the warrant, there is no exception for political, military or revenue offences, and there is no exception clause allowing a state to refuse to surrender its own nationals.

Double criminality

Double criminality is a feature of international extradition law by which states may refuse to extradite fugitives if the conduct which is alleged to have constituted a criminal offence in the state requesting extradition would not have resulted in the commission of a criminal offence in the state being asked to effect the extradition.
Under the EAW Framework Decision, the requirement for double criminality is removed for a wide range of categories of crimes, and made a discretionary rather than a compulsory ground for a refusal to extradite for offences not falling within those categories.
The categories within which are as follows:
The Framework Decision is silent as to whether secondary participation in, or an attempt to commit, an offence of the kind listed here itself excluded from the requirement for correspondence.
Another issue which has arisen is the accuracy of a description of an offence as being in a category exempt from the requirement for correspondence, and whether the executing judicial authority is required to accept the issuing judicial authority's classification as definitive.

Surrender of nationals

Prior to the adoption of the EAW Framework Decision in 2002, 11 of the then 15 member states – namely Austria, Belgium, Denmark, Finland, France, Germany, Greece, Luxembourg, Portugal, and Sweden — had domestic rules which prevented the extradition of their nationals. Although the Nordic EU members – Denmark, Finland, and Sweden – did allow the extradition of their nationals to each other and to other Nordic countries, they refused the extradition of both their nationals and the nationals of other Nordic countries elsewhere. In addition seven of the 12 member states which joined between 2004 and 2007 – namely Bulgaria, Cyprus, the Czech Republic, Latvia, Lithuania, Poland, and Slovenia – employed a similar prohibition prior to their accession.
Under the Framework Decision, member states are precluded from refusing the surrender of their own nationals wanted for the purposes of prosecution, but they may condition the surrender of a requested person on his or her being returned to the issuing state to serve any sentence ultimately imposed. The Netherlands which requires issuing states to return both Dutch nationals and permanent residents, also requires issuing states to agree that any sentences imposed will be converted into those applicable under Dutch law using the 1995 Convention on the Transfer of Sentenced Persons. This has the effect of re-introducing the double-criminality requirement for Dutch nationals and permanent residents, as the conversion of a sentence imposed in an issuing state could not be converted into a comparable sentence by a Dutch court if the conduct constituting the criminal offence in the issuing state does not constitute a criminal offence in the Netherlands.