EU Member States have been extraditing suspects and sentenced persons to each other for many decades on the basis of bilateral and multilateral conventions. Those arrangements were, however, slow and thwarted by exceptions based on national sovereignty. As EU integration has progressed, the Member States have agreed to base their cooperation on the principle of mutual recognition of judicial decisions, moving away from a system in which decisions on extradition were ultimately taken at government level. This principle was implemented in the Framework Decision on the European Arrest Warrant and Surrender Procedures (FD EAW), adopted in 2002 on the basis of rapid negotiations following the 9/11 terrorist attacks.
This paper is the first of two publications on the implementation of the European arrest warrant that EPRS will prepare for the LIBE committee.
It provides a framework for analysis as well as preliminary findings on the implementation of the above-mentioned legislation in practice. This paper will be followed by a study (due in April 2020) that will present a comprehensive assessment of the implementation of the FD EAW and tentative recommendations on how to address shortcomings identified.
The FD EAW, adopted in 2002 and implemented since 2004, is generally recognised as a successful instrument. The data available show that it has led to a considerable simplification and speeding up of handover procedures, including for some high-profile cases of serious crime and terrorism. In 2017, the average time between the arrest and surrender of people who did not consent to surrender was 40 days, a remarkable reduction compared to the one year average under the preexisting extradition regime.
Notwithstanding these achievements a number of challenges remain. More specifically, reports by EU institutions, case law and contributions by practitioners, academics and non-governmental organisations (NGOs) point to a number of challenges in the issuance and execution of EAWs. Those challenges relate back to core debates concerning judicial independence, the nature of mutual recognition and its relationship with international norms, primary EU law and values, including fundamental rights, and (the need for) additional harmonisation measures. In particular, they concern the following matters:
the definition of issuing judicial authorities and their independence from government, which excludes police officers and organs of the executive, but can include public prosecutors in accordance with certain conditions (Section 2.1.1);
the proportionality of a number of EAWs issued for ‘minor crimes’ and before the case was ‘trial ready’, also in view of other possible judicial cooperation measures, where the European Parliament’s call for legislative reform has been answered through guidelines in a Commission Handbook (Section 2.1.2)
the verification of double criminality by executing judicial authorities, leading to a lively academic debate on the compatibility of this requirement with the principle of mutual recognition and potential further questions to be raised with the CJEU; and the lack of approximation of certain offences for which verification is no longer allowed (Section 2.2.1);
EAWs for nationals and residents of the executing Member State and their interplay with the Framework Decision on the Transfer of Prisoners with the dual aim of social rehabilitation and the prevention of impunity (Section 2.2.2);
EAWs based on decisions following proceedings at which the person concerned was not present (in absentia) raising practical problems caused by non-implementation, differences concerning implementation, or incorrect implementation or application of the legislation implementing the Framework Decision on in absentia (Section 2.2.3);
and the role of the executing judicial authority in safeguarding the fundamental rights of the requested person as developed in the CJEU’s case law both as regards EAWs where there are concerns relating to poor detention conditions and broader concerns relating to the right to a fair trial, including an independent and impartial tribunal (Section 2.2.4).
Finally, requested persons have also faced difficulties in effectively exercising their procedural rights in the issuing as well as the executing Member State based on the specific provisions relating to the EAW in the various directives approximating the rights of suspected and accused persons within the EU (Section 2.3).
LINK TO THE FULL TEXT OF THE STUDY https://www.europarl.europa.eu/RegData/etudes/IDAN/2020/621814/EPRS_IDA(2020)621814_EN.pdf