EUROPEAN
ARREST WARRANT
PROCEEDINGS
―
ROOM FOR
IMPROVEMENT
TO GUARANTEE
RIGHTS IN
PRACTICE
REPORT
© European Union Agency for Fundamental Rights, 2024
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Contents
Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Abbreviations
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Country codes
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Key findings and FRA opinions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Introduction
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
WHY THIS REPORT?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SCOPE AND PURPOSE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
STRUCTURE OF THE REPORT
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
METHODOLOGY AND CHALLENGES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ENDNOTES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ISSUING AND EXECUTING A EUROPEAN ARREST WARRANT FOCUSING ON
PROPORTIONALITY AND FUNDAMENTAL RIGHTSBASED GROUNDS FOR NONEXECUTION . . . .
A. LEGAL OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. FINDINGS: ISSUING AND EXECUTING A EUROPEAN ARREST WARRANT IN PRACTICE . . . . .
ENDNOTES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RIGHT TO ACCESS TO A LAWYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. LEGAL OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. FINDINGS: RIGHT TO ACCESS TO A LAWYER IN PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . .
ENDNOTES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RIGHT TO INFORMATION IN EUROPEAN ARREST WARRANT PROCEEDINGS . . . . . . . . . . . . . . . .
A. LEGAL OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. FINDINGS: RIGHT TO INFORMATION IN PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ENDNOTES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RIGHT TO INTERPRETATION AND TRANSLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. LEGAL OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. FINDINGS: INTERPRETATION AND TRANSLATION IN NATIONAL LAWS AND PRACTICE . . .
ENDNOTES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Glossary
Accused person Any natural person who is formally charged by the competent authorities (i.e. a prosecutor,
an investigative judge or even the police) with allegedly having committed a criminal offence.
The term commonly refers to a person subject to the more advanced stages of pre-trial
proceedings and/or a person committed to trial.
Arrest An action involving the apprehension of a person suspected of being involved in a crime
by the law enforcement authorities and their being placed in police custody.
Charge An official notification given to an individual by the competent authority of an allegation
that they are suspected or accused of having committed a crime; also referred to as
‘accusation’.
Child Any natural person below the age of 18years.
Defendant Any natural person subject to criminal proceedings initiated by the relevant authorities due
to suspicion or charge of having committed a crime. The term is also used in this report to
mean ‘suspect’, ‘accused person’ or ‘requested person’ (see separate definitions of these
terms in this glossary).
Deprivation of liberty Arrest or any type of confinement in a restricted space by the authorities, including when
the police apprehend and question a person without a judicial decision or a warrant. That
person may be set free after questioning; however, deprivation of liberty has taken place
if, for some period of time, the person was not allowed to leave police custody.
European Arrest Warrant
An arrest warrant based on Council Framework Decision 2002/584/JHA of 13June 2002 on
the European Arrest Warrant and the surrender procedures between Member States, valid
throughout all Member States of the EU. Once issued by one Member State (the ‘issuing
Member State’), it requires another Member State (the ‘executing Member State’) to arrest
a criminal suspect or sentenced person and transfer them to the issuing state so that the
person can be put on trial or complete a detention period.
Executing Member State The Member State responsible for the execution of a European Arrest Warrant.
Issuing Member State The Member State issuing a European Arrest Warrant for acts punishable by the law of that
Member State by a custodial sentence or a detention order.
Judge Any public official with the authority and responsibility to decide on criminal cases in a court
or make decisions on legal matters.
Judicial authority A judicial authority of a Member State that is independent and competent to issue or execute
European Arrest Warrants by virtue of the law of that state.
Law enforcement authority National police, customs or other authority that is authorised to detect, prevent and investigate
offences and to exercise authority and coercive force.
Lawyer Any person who is authorised to pursue professional legal activities, including to advise
people about the law and to represent them in court and other legal proceedings. More
specifically, in the context of this report, this includes defence lawyers, as persons authorised
to advise and represent defendants.
Legal aid System of funding accessible to people with insufficient or no means to cover professional
legal help and the costs of the proceedings themselves.
Pre-trial detention Deprivation of a defendant’s liberty imposed before the conclusion of a criminal case in the
context of judicial proceedings by a judicial authority (i.e. a judge, an investigative judge, a
court). Not to be confused with police detention, which takes place prior to bringing a
suspected person before a judge.
Prosecutor A public official, who, inter alia, institutes and conducts legal proceedings against a defendant in
respect of a criminal charge, representing the state.
Questioning Any oral interview or interrogation of a person by the police, a prosecutor or a judge during which
they are asked questions about their knowledge of or possible involvement in a criminal offence.
Requested person An individual who is the subject of an arrest warrant issued by any of the 27 Member States of the
EU. A European Arrest Warrant is issued to request the person’s arrest and extradition back to the
issuing state to serve a sentence or to face criminal charges.
Speciality rule The speciality rule entails that a requested person is generally surrendered in respect only of the
offences specified in the European Arrest Warrant, and it can therefore block prosecution or
punishment for offences not listed in the EAW.
Suspect Any natural person who has been thought of as having committed a criminal offence, even before
that person is made aware, by official notification or otherwise, that they are a suspect. The term
commonly refers to the initial stages of criminal investigations/ pre-trial proceedings.
Witness Any natural person who has been summoned to give testimony. Unlike a suspect, such a person
can be compelled to take an oath during the procedure to ensure that any statement made to the
judge is truthful. However, a witness can refuse to give a statement in evidence if there is a
possibility of self-incrimination.
Abbreviations
Charter Charter of Fundamental Rights of the European Union
CJEU Court of Justice of the European Union, formerly the European Court of Justice
EAW European Arrest Warrant
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EU European Union
FRA European Union Agency for Fundamental Rights
ICCPR International Covenant on Civil and Political Rights
SIS Schengen information system
Country codes
Code EU Member State
AT Austria
BE Belgium
BG Bulgaria
CY Cyprus
CZ Czechia
DE Germany
DK Denmark
EE Estonia
EL Greece
ES Spain
FI Finland
FR France
HR Croatia
HU Hungary
IE Ireland
IT Italy
LT Lithuania
LU Luxembourg
LV Latvia
MT Malta
NL Netherlands
PL Poland
PT Portugal
RO Romania
SE Sweden
SI Slovenia
SK Slovakia
Key findings and FRA opinions
Building on previous research by the European Union Agency for Fundamental
Rights (FRA) on criminal procedural rights and cross-border cooperation in
criminal matters, undertaken at the specific request of the European
Commission, this report presents the findings of the most recent project
carried out by FRA on selected fundamental rights of persons subject to
European Arrest Warrant (EAW) proceedings. The report deals with
proportionality in the application of EAWs, fundamental rights-based grounds
for non-execution and the rights to access to a lawyer, to information and
to translation and interpretation during EAW proceedings.
The main objective of Council Framework Decision 2002/584/JHA of 13June
2002 on the European Arrest Warrant and the surrender procedures between
Member States (the EAW framework decision) is to address impunity and
to bring those who have fled the country in which their crime was committed
to justice. To achieve that, an issuing Member State issues an arrest warrant,
which must be swiftly executed by the executing Member State, without
examining the substance of the warrant, in the spirit of mutual trust and
mutual recognition. Requested persons have limited opportunities to challenge
the warrant; however, during the proceedings they have certain rights as
guaranteed by the Charter of Fundamental Rights of the European Union
(the Charter) and secondary law instruments, such as the EAW framework
decision and the criminal procedural rights framework. Relevant international
human rights instruments, such as the European Convention on Human Rights
and the International Covenant on Civil and Political Rights, also apply,
addressing in particular the prohibition of torture and inhuman or degrading
treatment in the event of extradition.
An EAW– like any measure leading to deprivation of liberty– should be
proportionate and narrowly tailored to its objective. The principle of
proportionality is one of the guiding principles of the EU legal order. It restricts
the authorities in exercising their powers by requiring them to strike a balance
between the means used and the expected aim to be achieved. An arrest
warrant, being a measure restricting an individual’s right to liberty and right
to respect for private and family life, should always be proportionate to the
aim it seeks to achieve.
Relying on principles of mutual trust and mutual recognition, the executing
authorities should in principle surrender the requested persons swiftly.
However, in recent years, the Court of Justice of the European Union has
confirmed that surrender should be postponed or even refused when respect
for certain fundamental rights, such as the right to dignity or to freedom
from inhuman or degrading treatment, is at stake. In short, whenever there
is a risk that a requested person will be subjected to inhuman or degrading
treatment upon surrender, the executing authority has a duty to assess this
risk and, if necessary, postpone or refuse surrender. The same principle also
applies to the risk of denial of justice.
Requested persons also have procedural rights during EAW proceedings. The
European legislator has recognised their right to legal assistance both in the
country issuing the EAW and in the country executing it. They have the right
to understand what is happening to them; therefore, they have the right to
information about their rights and the EAW procedure, including the
consequences of their decisions. They also have the right to interpretation
and translation during the proceedings.
This report examines how these principles and rights are upheld in practice,
based on desk research and interviews with professionals in 19 Member
States and requested persons in 6 Member States. The research does not
cover the full scope of the EAW framework decision and the criminal procedural
rights legal framework but focuses on specific rights of requested persons
as specified in the various sections of the report, including the right to
freedom from torture and inhuman or degrading treatment or punishment
and the right to access to a lawyer and information, interpretation and
translation during the proceedings. FRA’s evidence indicates that, while the
practical implementation of the rights of requested persons varies across
the Member States covered, some common challenges exist.
The research covers the 19 Member States that were not covered by FRA’s
previous published research on the EAW (which covered 8 Member States),
namely Belgium, Croatia, Cyprus, Czechia, Estonia, Finland, Germany, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia,
Slovenia, Spain and Sweden. The report draws on the experiences of between
5 and 15 interviewees per country (161 professionals and 21 requested persons
were interviewed in total). In light of this, the findings do not claim to be
representative of the situation in each Member State or the EU as a whole.
Nevertheless, they provide a unique comparative insight into the views of
the professionals involved and of people who have experienced at first hand
how EAW proceedings are conducted in practice. This helps us to understand
the fundamental rights challenges they have encountered and provides
evidence to enable a critical assessment of the practical implementation of
this legislative instrument 20years after its entry into force. The report also
provides– in the Introduction– examples of notable developments with
respect to the application of the EAW in those Member States that FRA
researched previously.
ASSESSING AND RESPECTING FUNDAMENTAL RIGHTS
WHEN EXECUTING A EUROPEAN ARREST WARRANT
The EAW framework decision does not contain any
provision on non-execution on the basis of a breach
of the requested person’s fundamental rights in the
issuing Member State. However, Article1(3) of the
EAW framework decision, read together with recitals12
and 13, clarifies that fundamental rights and
fundamental legal principles should be respected when
implementing the EAW.
The jurisprudence of the Court of Justice of the European
Union confirms this. In cases in which the possibility
of violation of fundamental rights in the issuing state
was raised by the requested person or their
representatives, the court introduced a two-step test
to examine whether the execution of the EAW would
lead to a violation of a fundamental right such as the
prohibition of inhuman or degrading treatment, for
example in cases involving inhuman detention
conditions, or the right to a fair trial. In addition, the
court found that the executing authority must take a
serious health condition into consideration when
deciding on the surrender of an individual who is ill.
The research finds that judicial authorities in the
Member States covered do not always consider the
fundamental rights implications of surrendering
individuals when executing an EAW. For example,
interviewed lawyers pointed to examples of inhuman
and degrading detention conditions in the issuing state
and of disregard for the health and family situations
of requested persons. They referred to cases involving
the surrender of people who were seriously ill, despite
the fact that the particular situation of the individual
had been raised before the judicial authorities.
With regard to the risk of denial of justice owing to
violation of the right to a fair trial in the issuing state,
the research findings show that this is very rarely
examined.
Some interviewed judicial authorities consider that
the principles of mutual trust and mutual recognition
prevent them from examining the individual situations
of requested persons, detention conditions and access
to justice in the issuing Member State. They also argue
that these factors are to be considered only when
dealing with requests for extradition to non-EU
countries. In addition, some interviewed lawyers and
judicial authorities consider that all EU Member States
respect fundamental rights to the same extent and
that therefore there is no need to examine these
aspects.
FRA OPINION
Member States should ensure that
the fundamental rights implications
of cross-border transfers are duly
considered in individual cases, in line
with the evolving jurisprudence of
the Court of Justice of the European
Union and with their obligations under
EU and international law. Accordingly,
their national courts should properly
assess the real risk of fundamental
rights violations, in particular any
violation of the prohibition of inhuman
or degrading treatment in criminal
detention facilities, and take action
to prevent them. Executing judicial
authorities should also examine
the risk of denial of justice in the
issuing state if the issue is raised by
the requested person or their legal
representative.
Executing authorities are encouraged
to assess the impact of surrendering
an individual on their fundamental
rights with regard to individual
aspects such as their health when
there is a risk of a possible violation
of fundamental rights.
FRA reiterates its opinion, previously
presented in the report Criminal
Detention and Alternatives:
Fundamental rights aspects in EU
cross-border transfers, that it is
particularly important that individual
situations are strictly evaluated when
the issue of inhuman conditions of
detention is raised. This applies in
particular when there is objective
evidence of systemic shortcomings in
a Member State’s detention facilities.
ENSURING THAT LEGAL REPRESENTATION IN THE
EXECUTING STATE IS REAL AND EFFECTIVE
In accordance with Article11(2) of the EAW framework
decision, a requested person has the right to be
assisted by a legal counsel for the purpose of the
execution of the EAW. In line with Article47 of the
Charter, Article10 of Directive 2013/48/EU on the right
of access to a lawyer in criminal proceedings and in
European Arrest Warrant proceedings, and on the right
to have a third party informed upon deprivation of
liberty and to communicate with third persons and
with consular authorities while deprived of liberty,
reiterates and further elaborates on the requested
person’s right to a lawyer in the executing state.
Accordingly, requested persons have the right to access
to a lawyer in such time and in such a manner as to
allow the requested persons to exercise their rights
effectively and in any event without undue delay from
the moment of deprivation of liberty. In addition, a
requested person has the right to meet their lawyer
and communicate with them confidentially. Recital45
specifies that executing Member States should make
the necessary arrangements to ensure that requested
persons are in a position to exercise effectively their
right of access to a lawyer in the executing Member
State, including by arranging the assistance of a lawyer
when requested persons do not have one, unless they
have waived that right. Such arrangements, including
those on legal aid if applicable, should be governed
by national law. They could entail, inter alia, the
competent authorities arranging the assistance of a
lawyer on the basis of a list of available lawyers from
which requested persons could choose.
The research shows that the right to access to a lawyer
in the executing state is overall generally complied
with. Interviewees agree that in general requested
persons receive legal assistance from public defenders.
However, the research also shows that requested persons receive little to
no help from the authorities when hiring a private lawyer. Since requested
persons do not always have connections in the executing state, they may
face difficulties in finding a lawyer of their choice.
In addition, it appears from the interviews that, while in general a requested
person has the opportunity to meet their lawyer before the hearing,
consultations between a requested person and their lawyer are sometimes
rushed or held in a space that is not suitable, such as a courthouse corridor.
FRA OPINION
While Member States continue to fulfil
their obligations to provide a requested
person with access to a lawyer and
to secure a public defender for them
if necessary in the executing state,
they are encouraged also to develop
a mechanism, in collaboration with
bar associations, enabling requested
persons to hire their own lawyer if
they wish to do so. Lists of lawyers
with experience in EAWs, detailing
the languages that they speak, could
be provided to requested persons
to facilitate their hiring a lawyer of
their choice if they do not wish to
benefit from the assistance of a public
defender. Member States should
also ensure that sufficient time and
adequate facilities are available to
enable requested persons to consult
with their lawyers before the first
hearing. This could be achieved, for
example, by having dedicated rooms in
courthouses and making sure that the
relevant procedures allow sufficient
time.
ENSURING ACCESS TO LEGAL REPRESENTATION IN THE
ISSUING STATE
In accordance with Article10(4) of Directive 2013/48/
EU on the right of access to a lawyer in criminal
proceedings and in European Arrest Warrant
proceedings, a requested person has the right to access
to a lawyer in the issuing Member State (so-called dual
legal representation). This provision introduced an
additional safeguard to strengthen the procedural rights
of requested persons during EAW proceedings. The
competent authority in the executing Member State
must inform requested persons, without delay, that
they have the right to appoint a lawyer in the issuing
Member State. The lawyer in the issuing Member State
is to assist the lawyer in the executing Member State
by providing them with information and advice with a
view to the effective exercise of the rights of requested
persons under the EAW framework decision.
The research shows that, in practice, dual legal
representation is a rare occurrence. The authorities do
not systematically inform requested persons about this
right and do not provide any assistance with the
appointment of a lawyer in the issuing state. Only a
handful of Member States provide in the EAW form
that has to be completed by the issuing state authorities
and forwarded to the executing state the name of the
lawyer representing the requested person in the issuing
state or a list of lawyers potentially able to do so. Judicial
authorities interviewed for the research emphasised
that they do not feel competent to elaborate on the
right to legal representation in another jurisdiction;
therefore, when executing an EAW, they do not inform
the requested person about their right to a lawyer in
the issuing state. Interviewed lawyers highlighted that
legal representation in the issuing state very often
depends on the willingness of the lawyer representing
the requested person in the executing state to use their
professional and private contacts.
The research findings also show that the role of the
lawyer in the issuing state is not always understood
by judges, prosecutors and lawyers. Several
interviewees from all professional groups questioned
the need for dual legal representation and were unable
to see how this right could contribute to safeguarding
the right to a fair trial in EAW proceedings. In contrast,
other judges, prosecutors and lawyers, especially
those with experience as legal representatives in the issuing state, could
see the added value of dual legal representation in ensuring the overall
fairness of proceedings. Those interviewees highlighted instances in which
the assistance of a lawyer in the issuing state led to the withdrawal of an
EAW that had been issued erroneously (against the wrong person or in
connection with a trivial offence) or to negotiations with the issuing authorities
that secured certain outcomes, such as agreeing on a penalty before surrender,
which in turn led to voluntary surrender. However, the interviewees also
emphasised difficulties in communication between lawyers in two states,
mainly because of tight deadlines and differences between jurisdictions.
FRA OPINION
Member States should ensure
effective access to dual legal
representation in practice in line with
their obligations under Directive
2013/48/EU on the right of access to
a lawyer in criminal proceedings and in
European Arrest Warrant proceedings.
National authorities responsible for
the administration of justice should
develop guidance for police and judicial
authorities highlighting the need to
inform requested persons about this
right without delay. Judicial authorities
should verify at the first questioning
whether a requested person is indeed
aware of this right and whether they
want to exercise it.
Issuing Member States are encouraged
to follow the good practice of
including the name of the lawyer
representing the requested person
in the issuing state in the EAW form.
If a person does not have a lawyer
appointed to represent them in the
issuing state, Member States are
encouraged, in cooperation with bar
associations, to attach to the EAW form
a list of lawyers specialising in EAW
proceedings practising in the issuing
state, specifying the languages that
they speak.
Member States, in cooperation with
EU bodies, are encouraged to take
measures to improve cooperation
among lawyers and help them gain
a deeper understanding of the EAW.
PROVIDING INFORMATION TO REQUESTED PERSONS IN
AN EFFECTIVE AND RIGHTSCOMPLIANT WAY
FRA OPINION
Member States should consider
developing materials for police officers
responsible for arresting requested
persons in EAW proceedings. Such
materials could include a simple
checklist to facilitate the prompt
provision of information to requested
persons and emphasise the need to
orally explain crucial information. In
addition, national authorities could
consider developing materials to assist
police officers, judges and prosecutors
in providing information to requested
persons in a simple way. For example,
they could produce leaflets or other
explanatory materials that could be
translated into the most commonly
spoken languages.
National authorities are encouraged
to ensure that all documents provided
to requested persons are written in
simple and accessible language,
avoiding legal jargon as far as
possible. Member States could develop
additional materials and briefings for
police officers and legal professionals
on the various factors that can
compromise an individual’s ability
to understand the procedure and the
consequences of various decisions.
Member States are encouraged to
cooperate with the European Judicial
Training Network and national bar
associations to develop training
modules and materials, such as
checklists to help professionals dealing
with EAW proceedings to ensure that
requested persons are better informed.
In accordance with Article47 of the Charter and
Article11(1) of the EAW framework decision, the
executing competent judicial authority should inform
the requested person about the EAW and its content,
as well as the possibility of consenting to surrender
to the issuing judicial authority. According to Article5
of Directive 2012/13/EU on the right to information in
criminal proceedings, persons arrested under the EAW
should be provided promptly with an appropriate letter
of rights containing information about their rights. The
letter of rights must be drafted in simple and accessible
language. Furthermore, in accordance with Article6(2)
of Directive 2012/13/EU, all arrested persons should
be informed about the reasons for their arrest.
As a general principle of the right to information, all
information should be provided in simple and accessible
language, taking into account the particular needs of
a given person.
The research shows that, in general, requested persons
are informed about their rights, the reasons for their
arrest and the content of the EAW. Interviewed lawyers
nevertheless emphasise that, when an EAW is entered
into the Schengen information system , the information
about the reasons for arrest and the content of the
EAW is often delayed by several days. In general, with
respect to EAWs, interviewed lawyers suggest that
the information about rights is not always provided
promptly after a person’s arrest. They suggest that in
some Member States police officers do not explain
any rights orally but, instead, hand a letter of rights
to the requested person. There are also reported
instances of requested persons being provided with
a letter of rights applicable to general criminal
proceedings and not to EAW proceedings, without the
differences being explained to them. Judicial authorities
interviewed in a few Member States referred in this
context to manuals or checklists for officers dealing
with EAWs, which help them to inform requested
persons about their rights and specific aspects of EAW
proceedings.
Interviewed lawyers suggest that requested persons
do not always understand the information provided
to them by judicial authorities, in particular regarding
the possibility of consenting to surrender and its
consequences (e.g. that this means waiving the
principle of speciality, which could prevent them from being prosecuted for
offences not mentioned in the EAW framework decision). Therefore, in some
of the Member States covered, to facilitate provision of information and help
to ensure that requested persons fully understand the information provided,
the authorities have developed special checklists for police officers and
judicial authorities that include all the information that needs to be provided
to requested persons.
The research does indicate that requested persons do not fully understand
all the information provided. This seems to be a problem due to a myriad of
factors, such as the fast pace of proceedings, a person’s state of shock upon
arrest, individuals’ characteristics– such as the language that they speak or
their level of education– and the provision of documents containing lengthy
lists of rights, often written in complex legal language.
In the context of providing information to requested persons, interviewed
judges, prosecutors and lawyers highlighted that all professionals dealing
with EAWs would benefit from specialised training on EAW proceedings, as
they differ from criminal proceedings and many professionals lack experience
in them.
ENSURING ADEQUATE INTERPRETATION AND
TRANSLATION
FRA OPINION
Member States should ensure, in
every case where it is necessary, the
availability of qualified interpreters
and translators. If there is a lack of
suitable interpreters and translators,
Member States are encouraged to
cooperate with relevant national and
European professional associations of
legal translators and interpreters to
develop ways of sharing the pool of
available interpreters and translators
between Member States.
Moreover, to ensure that
interpretation and translation are
of an adequate standard, Member
States are encouraged to introduce
mechanisms for verifying interpreters’
and translators’ actual ability to
understand, interpret and translate
legal terms and concepts. FRA
reiterates its opinion, previously
presented in the report Rights of
suspected and accused persons across
the EU: Translation, interpretation
and information, that Member States
should consider introducing relevant
safeguards to maximise the quality of
translation and interpretation.
Under Article47 of the Charter and Article11(2) of the
EAW framework decision, a requested person has the
right to be assisted by a legal counsel and by an
interpreter in accordance with the national law of the
executing Member State. Moreover, Directive 2010/64/
EU on the right to interpretation and translation in
criminal proceedings sets forth additional legal
provisions on a requested person’s right to access
translation and interpretation services during EAW
proceedings.
In accordance with Article2(7) of Directive 2010/64/
EU, executing Member States should ensure that the
relevant authorities provide requested persons who
do not speak or understand the language of the
proceedings with interpretation without delay during
criminal proceedings before investigative and judicial
authorities, including during police questioning, all
court hearings and any necessary interim hearings.
Under Article 3(6) of Directive 2010/64/EU, in
proceedings for the execution of an EAW, the executing
Member State must ensure that its competent
authorities provide any person subject to such
proceedings who does not understand the language
in which the EAW is drawn up, or into which it has
been translated by the issuing Member State, with a
written translation of that document. An oral translation
or oral summary of the EAW may be provided instead
of a written translation on condition that such oral
translation or oral summary does not prejudice the
fairness of the proceedings.
The research shows that, in general, requested persons
are provided with interpretation services and
translations during EAW proceedings.
However, the quality of interpretation services received
much criticism, with most interviewees from all groups noting that it was
poor. Interviewees, for example, stated that anyone who spoke the language
could be hired as an interpreter, without their necessarily having any relevant
training or experience. The findings also highlight challenges encountered
in providing interpretation services for non-EU languages or less widely
spoken EU languages. In such cases, it seems that identifying and quickly
hiring interpreters is not always possible.
When it comes to the translation of the EAW, the findings show that providing
requested persons with an orally summarised translation of the document
is very common and often done instead of providing a full written translation.
Interviewees attribute this to the fast pace and short deadlines of the
proceedings, which leave insufficient time to employ translators.
Introduction
WHY THIS REPORT?
Council Framework Decision 2002/584/JHA of 13June 2002 on the European
Arrest Warrant and the surrender procedures between Member States (the
EAW framework decision) reflects the principle of mutual recognition in
criminal matters(
1
). Based on the principle of mutual recognition, the European
Arrest Warrant (EAW) allows a judicial decision issued in one EU Member
State– with a view to the arrest and surrender for the purposes of conducting
a criminal prosecution or executing a custodial sentence or detention order–
to be carried out in another Member State(
2
).
The year 2022 saw the 20th anniversary of the adoption of the EAW framework
decision. To mark that occasion, the Council invited the European Union
Agency for Fundamental Rights (FRA) to consider continuing its research on
the right to access a lawyer and other procedural rights in criminal and EAW
proceedings. It suggested extending the research to cover the Member States
that had not been covered previously(
3
) and placing a special emphasis on
the experiences of lawyers involved in surrender proceedings(
4
). This research
responds to that call. The opinions deriving from the research seek to
contribute to the better implementation of the current framework at the EU
and national levels.
This report is addressed primarily to the EU institutions and Member State
authorities, including their national police and criminal justice authorities. It
sets out to assist the European Commission in assessing the practical
application of the rights and safeguards enshrined in the EAW framework
decision and relevant procedural rights directives. The report also seeks to
produce evidence that can assist Member States in their efforts to enhance
their legal and institutional responses in EAW proceedings and proceedings
involving other cross-border judicial instruments. For more details regarding
particular Member States covered in this report, please see the relevant
country studies prepared by FRA’s multidisciplinary research network,
Franet(
5
).
Mutual
recognition
and mutual
trust
Mutual recognition and mutual trust are the cornerstone principles of European cooperation
in criminal matters. This means that EU Member States are bound to recognise and enforce
judicial decisions delivered in other Member States. Although legal systems may differ, the
decisions reached by judicial authorities across the EU should be accepted as equally valid.
Mutual recognition strengthens cooperation between Member States, accelerates proceedings,
has the potential to enhance the protection of individual rights and, all in all, strengthens
legal certainty across the EU by ensuring that a ruling delivered in one Member State is not
challenged in another. This is justified by the requirement that all Member States must meet
the standards of human rights protection set out in the Charter of Fundamental Rights of the
European Union (the Charter).
SCOPE AND PURPOSE
The main objective of the research is to examine how national authorities
apply selected procedural rights and safeguards guaranteed by EU law in
EAW proceedings, with a special emphasis on the experiences of lawyers
involved in surrender proceedings. The Council reiterated the need to respect
the right to a fair trial in surrender proceedings and considered it useful for
FRA to continue to research respect for procedural rights in surrender
proceedings. Responding to the Council conclusions of 23November 2020,
this report will serve as a valuable contribution to the proper implementation
and execution of the EAW framework decision and the body of law adopted
as part of the roadmap for strengthening procedural rights in criminal
procedures, taking into due account fundamental rights safeguards and
standards.
FRA ACTIVITY
This report is the latest in a series published by FRA on criminal justice procedural rights, which to date includes the following.
― Underpinning Victims’ Rights– Support services, reporting and protection (2023).
― Children as suspects or accused persons in criminal proceedings– Procedural safeguards (2022).
― Presumption of Innocence and Related Rights– Professional perspectives (2021).
― Rights in Practice: Access to a lawyer and procedural rights in criminal and European Arrest Warrant proceedings (2019).
― Victims’ Rights as Standards of Criminal Justice (2019). This is PartI of a series of four reports entitled Justice for Victims of
Violent Crime; it outlines the development of victims’ rights in Europe and sets out the applicable human rights standards.
― Proceedings That Do Justice (2019). PartII of the series Justice for Victims of Violent Crime focuses on procedural justice
and on whether or not criminal proceedings are effective, including in terms of giving a voice to victims of violent crime.
― Sanctions That Do Justice (2019). PartIII of the series Justice for Victims of Violent Crime focuses on sanctions and
scrutinises whether or not the outcomes of proceedings deliver on the promise of justice for victims of violent crime.
― Women as Victims of Partner Violence (2019). PartIV of the series Justice for Victims of Violent Crime focuses on the
experiences of one particular group of victims, namely women who have endured partner violence.
― Children deprived of parental care found in an EU Member State other than their own– A guide to enhance child
protection focusing on victims of trafficking (2019). This guide sets out the relevant legal framework that governs the
protection of children who are deprived of parental care and/or are found in need of protection in an EU Member State
other than their own, including child victims of trafficking, and their treatment in criminal proceedings.
― Children’s Rights and Justice– Minimum age requirements in the EU (2018). This report outlines Member States’
approaches to age requirements and limits regarding child participation in judicial proceedings, procedural safeguards and
the rights of children involved in criminal proceedings, as well as issues related to depriving children of their liberty.
― Child-friendly Justice– Perspectives and experiences of children involved in judicial proceedings as victims, witnesses or
parties in nine EU Member States (2017). This report is based on interviews with justice professionals and police and with
several hundred children involved as victims, witnesses or parties in criminal and civil judicial proceedings to learn about
their treatment, with a focus on cases involving sexual abuse, domestic violence, neglect and severe custody conflicts.
― Criminal Detention and Alternatives: Fundamental rights aspects in EU cross-border transfers (2016). This report provides
an overview of Member States’ legal regulations in respect of framework decisions on transferring prison sentences,
probation measures and alternative sanctions, as well as pre-trial supervision measures, to other Member States.
― Rights of suspected and accused persons across the EU: Translation, interpretation and information (2016). This report
reviews Member States’ legal frameworks, policies and practices regarding the rights to information, translation and
interpretation in criminal proceedings.
— Handbook on European law relating to access to justice (2016). This publication summarises the key European legal
principles in the area of access to justice, focusing on civil and criminal law.
The report builds on previous FRA research on procedural rights published
between 2016 and 2022. Importantly, the current report adds value in that it
includes the results of research on those Member States that were not covered
in the 2019 report on right to access to a lawyer in criminal and EAW proceedings.
The report focuses on rights and safeguards introduced by the jurisprudence
of the Court of Justice of the European Union (CJEU), the EAW framework
decision and the criminal procedural rights directives outlining the rights to
interpretation and translation(
6
), to information(
7
), to access to a lawyer(
8
)
and to legal aid(
9
). The report aims to highlight new findings and to avoid
repeating those from the previous research or duplicating other existing
research, although at times it refers back to issues discussed in previous work.
As requested by the Council in its conclusions(
10
), the report covers 19 EU
Member States (Belgium, Croatia, Cyprus, Czechia, Estonia, Finland, Germany,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia,
Slovenia, Spain and Sweden). However, at times there are references to other
Member States not covered by the research (e.g. Austria and France) or
non-EU countries (e.g. Türkiye and the United Kingdom). The EAW framework
decision is applied in the entire EU in respect of any person being sought by
the justice authorities, not only EU citizens, and therefore some cases referred
to are connected to non-EU countries and their citizens. The United Kingdom
applied the EAW framework decision until 31December 2020; therefore, the
experiences of requested persons from that country are included in the
analysis.
The eight countries covered in the 2019 report are not included in this
research(
11
). However, it should be noted that there have been developments
in the Member States covered in the 2019 report since its publication. This
is true in particular of the Netherlands and Poland, where a dialogue between
the Rechtbank Amsterdam (the District Court of Amsterdam) and the Polish
courts on the question of the application of the rule of law in the execution
of an EAW has taken place following the numerous preliminary ruling questions
sent by the Dutch and German courts to the CJEU(
12
).
How to
interpret
the research
findings
The findings are based on information provided during interviews with professionals (defence
lawyers, judges and prosecutors), as well as interviews with persons who were requested by a
Member State for surrender under the EAW (‘requested persons’) and their representatives. In
light of the qualitative nature of this research and the limited number of interviews conducted
in each Member State covered (see Table1), with 182 interviews in total, the findings cannot be
considered representative, nor can they be generalised with respect to other Member States.
Nevertheless, they serve to illuminate some challenges and highlight promising practices in the
implementation of the EAW framework decision and the criminal procedural legal framework.
The report provides policymakers and professionals with examples of initiatives in different
Member States that variously address a number of common challenges identified in the
research, elements of which could be adapted for use in their own national contexts.
STRUCTURE OF THE REPORT
The report is divided into four thematic chapters. Each chapter considers– in
law and in practice– a different aspect of EAW proceedings and the
corresponding procedural rights of requested persons at stake. Chapter1
outlines the fundamental rights implications of issuing and executing EAWs,
in particular the proportionality aspects of issuing an EAW and the risks of
possible human rights violations– mainly violations of the prohibition of
torture and inhuman or degrading treatment and the right to a fair trial– upon
surrender to the executing Member State. Chapter2 examines the right to
access to a lawyer in EAW proceedings and the role it plays in ensuring
respect for other procedural rights. Chapter3 addresses the right to information
in EAW proceedings. Chapter4 considers the right to interpretation and
translation. The report ends with a conclusion summarising the main findings.
METHODOLOGY AND CHALLENGES
The research aimed to gain insights into the implementation and practical
application of selected fundamental rights of requested persons as enshrined
in the EAW framework decision.
It involved desk research and fieldwork (interviews), as well as an experts’
meeting organised by FRA in October 2022. The research covers the 19
Member States (Belgium, Bulgaria, Croatia, Cyprus, Czechia, Estonia, Germany,
Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Slovakia,
Slovenia, Spain and Sweden) that were not covered in FRA’s previous report
Rights in Practice: Access to a lawyer and procedural rights in criminal and
EAW proceedings.
Desk research
The desk research was conducted by Franet
.
It involved an in-depth review
of the legal framework and provisions in place in each Member State regarding
selected fundamental rights of requested persons (right to access to a lawyer,
right to information and right to interpretation and translation) as enshrined
in the EAW framework decision, as well as legal provisions governing the
issuing and execution of an EAW. The research covered legislative acts, case-
law, explanatory reports, parliamentary discussions, guidelines, policy
documents– where necessary to understand the legal context– academic
articles and similar resources.
Fieldwork (interviews)
The fieldwork was also conducted by Franet. To ensure that the information
and data gathered were recent, interviews covered arrests carried out between
27November 2016 and 31December 2021 (31December 2022 in the case of
Sweden , as the Swedish researchers were contracted at a later date). The
requested persons interviewed included requested persons who had been
subject to EAW proceedings in the Member State where the interview took
place (at least two out of the five interviews conducted in each country) or
in any other EU Member State.
A total of 182 respondents were interviewed. These interviewees from the
19 selected Member States were made up of 75 lawyers, 77 judges or
prosecutors, 21 requested persons and 9 lawyers speaking on behalf of
requested persons (Table1).
TABLE: NUMBERS OF INTERVIEWEES BY MEMBER STATE AND TARGET
GROUP
Member
State
Lawyers
Judges/
prosecutors
Requested
persons
Lawyers speaking
on behalf of
requested
persons
Total
number of
interviewees
BE 4 4 — — 8
CY 3 3 3 2 11
CZ 5 4 — — 9
DE 5 5 — — 10
EE 3 3 — — 6
ES 5 5 3 2 15
FI 4 4 5 — 13
HR 4 5 — — 9
HU 4 4 — — 8
IE 4 4 — — 8
IT 5 5 5 — 15
LT 4 4 — 5 13
LU 3 3 — — 6
LV 4 4 — — 8
MT 4 3 — — 7
PT 4 5 5 — 14
SI 4 4 — — 8
SK 4 5 — — 9
SE 2 3 — — 5
Total 75 77 21 9 182
Source: FRA, 2022
The first stage of the project– covering the interviews with lawyers, judges
and prosecutors– was carried out between April 2022 and March 2023.
Requested persons (and their representatives) were interviewed during the
second stage, between February 2023 and April 2023. Due to resource
constraints, interviews with persons requested for surrender through EAWs
were conducted in only six Member States (Cyprus, Finland, Italy, Lithuania,
Portugal and Spain), and the interviews focused on their experiences of and
opinions about whether and how their fundamental rights were respected
in the EAW proceedings against them. It should be noted that lawyers
interviewed on behalf of requested persons during the second stage of the
fieldwork were asked to reflect on the specific experiences of their clients
and not on general practice in their Member States.
All interviewees– lawyers, judges, prosecutors and requested persons, or
their representatives when they were interviewed on their behalf– responded
to a questionnaire in a structured qualitative interview that covered their
experiences of and opinions on how selected fundamental rights of requested
persons had been respected and upheld during EAW proceedings and how
this had been achieved.
As noted, requested persons and their representatives were interviewed in
only 6 Member States of the 19 covered by this research. These Member
States were selected taking into account budgetary and human resource
constraints and the availability of requested persons. Securing interviews
with the requested persons was the most challenging aspect of the research,
as they were either very difficult to identify or not available for interview.
Therefore, as mentioned above, in some cases their representatives were
interviewed on their behalf.
The interviewers did not share the questionnaire with respondents in advance,
except for judges and prosecutors in Hungary; this was a formal requirement
for interviews with Hungarian judicial authorities. The interviewers encouraged
respondents to speak freely and draw on their personal experiences. Most
interviews were audio- or video-recorded, and all were documented using
a reporting template.
Experts’ meeting
The experts’ meeting took place at FRA’s premises in October 2022. FRA
invited 14 experts with experience of EAW proceedings: defence lawyers,
prosecutors, judges and representatives of Eurojust and the European Judicial
Network. The experts shared their experiences of and views on issuing and
executing EAWs and the procedural rights of requested persons.
Consultations
Given that, in its conclusions, the Council requested that FRA focus on lawyers’
experiences, FRA consulted professionals associated with the Council of Bars
and Law Societies of Europe when developing the research design and
methodology(
13
).
Endnotes
(
1
) S. Alegre and M. Leaf, ‘Mutual recognition in European judicial cooperation: A step too far too soon?’, European Law Journal, Vol.10, No2,
pp.200–217, 2004.
(
2
) Council Framework Decision 2002/584/JHA of 13June 2002 on the European Arrest Warrant and the surrender procedures between
Member States.
(
3
) FRA’s previous research had been published in FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and European
Arrest Warrant proceedings, Publications Office of the European Union, Luxembourg, 2019.
(
4
) Council conclusions ‘The European Arrest Warrant and extradition procedures– Current challenges and the way forward’, Brussels, 23
November 2020, para.29.
(
5
) For more information, see FRA’s webpage on Franet.
(
6
) Directive 2010/64/EU of the European Parliament and of the Council of 20October 2010 on the right to interpretation and translation in
criminal proceedings (OJ L280, 26.10.2010, p.1).
(
7
) Directive 2012/13/EU of the European Parliament and of the Council of 22May 2012 on the right to information in criminal proceedings (OJ
L142, 1.6.2012, p.1).
(
8
) Directive 2013/48/EU of the European Parliament and of the Council of 22October 2013 on the right of access to a lawyer in criminal
proceedings and in European Arrest Warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty (OJ L294, 6.11.2013, p.1).
(
9
) Directive (EU) 2016/1919 of the European Parliament and of the Council of 26October 2016 on legal aid for suspects and accused persons
in criminal proceedings and for requested persons in European Arrest Warrant proceedings (OJ L297, 4.11.2016, p.1).
(
10
) Council conclusions ‘The European Arrest Warrant and extradition procedures– Current challenges and the way forward’, Brussels,
23November 2020, para.29.
(
11
) Having previously undertaken research on the EAW in eight Member States, and given the agency’s available budget, FRA was not in a
position to extend the research to cover all the remaining Member States and– at the same time– to undertake research again in those
eight Member States already covered by the previous EAW study.
(
12
) See, for instance, two preliminary rulings requested by the Netherlands: CJEU, joined cases C-354/20PPU and C-412/20PPU, L and P,
17December 2020, in which the CJEU confirms that a case-by-case examination of the risk of fundamental rights violations affecting
the requested person is necessary (see also the related news post); and CJEU, joined cases C-562/22 PPU and C-563/21 PPU, X and Y
v Openbaar Ministerie, 22February 2022, in which the CJEU clarifies its case-law on refusal to execute an EAW on fundamental rights
grounds (see also the related press release). See also P. Bard, Rule of Law– Sustainability and mutual trust in a transforming Europe,
Eleven International Publishing, The Hague, 2023, p.55 et seq.
(
13
) See the council’s website for more information.
21
ISSUING AND EXECUTING A
EUROPEAN ARREST WARRANT
FOCUSING ON PROPORTIONALITY
AND FUNDAMENTAL RIGHTSBASED
GROUNDS FOR NONEXECUTION
This chapter examines selected fundamental rights implications of issuing
and executing EAWs. It does not deal in detail with all the applicable rules
and principles– for instance, questions of double criminality or ne bis in
idem– as these have been discussed elsewhere(
1
).
The aim of the chapter is to examine whether specific fundamental rights
are properly considered by Member States when issuing and executing an
EAW. Therefore, it focuses mainly on the proportionality of the measure,
consideration of the individual situations of requested persons, detention
conditions and the right to a fair trial.
The chapter does not deal with grounds for non-execution of an EAW explicitly
listed in the EAW framework decision(
2
), but, rather, focuses on the
jurisprudence of the CJEU.
A. LEGAL OVERVIEW
Issuing a European Arrest Warrant
The EAW is issued by a judicial authority (an independent authority such as
a court or an independent prosecutor)(
3
) in one Member State (the issuing
Member State) to a judicial authority in another Member State (the executing
Member State), or– when the location of the requested individual is unknown–
it is entered into the Schengen information system (SIS) as an alert directed
to all Member States, for the purpose of criminal prosecution or the execution
of a custodial sentence(
4
). In either case, the executing Member State can
make surrender conditional on the crime being punishable under its law
(known as the double criminality requirement)(
5
). An EAW may not, however,
be subject to this requirement if the offence is included in the list of 32
offences set out in the EAW framework decision(
6
). The EAW framework
decision abolished the political offence exemption. Therefore, an EAW may
be issued for a political offence, although this is rare and very much debated(
7
).
The EAW framework decision does not refer to the application of the principle
of proportionality when issuing an arrest warrant. However, as the EAW must
always be based on a national arrest warrant, the principle of proportionality,
applicable to national warrants, extends to EAWs(
8
).
22
According to the CJEU, the issuing of an EAW rests on a two-level system of
protection of fundamental rights: at the level of issuing the national arrest
warrant and at the level of issuing the EAW(
9
). Both these tasks should be
entrusted to a ‘judicial authority’(
10
).
According to the CJEU, Article47 of the Charter requires that an EAW against
a person charged with a crime, or the national arrest warrant on which it is
based, be subject to review by a court in the issuing Member State(
11
). This is
not required when the warrant is based on a final conviction passed by a
court(
12
). The review should ensure that the fundamental rights, such as legal
and factual bases for deprivation of liberty, of the person whose arrest is
requested are respected(
13
). It can take place before or at the time of the
issuing of the EAW, but also thereafter at any time before the surrender of the
requested person(
14
). During this review, all available evidence, as well as the
conditions for and proportionality of issuing the EAW, should be examined(
15
).
CJEU case-law has not yet established clear criteria for proportionality when
issuing an EAW. What is certain is that the issuing judicial authority should
assess the proportionality of an EAW and this should be subject to effective
judicial review(
16
). This approach is also recommended in the General Secretariat
of the Council’s Final report on the 9th round of mutual evaluations on mutual
recognition legal instruments in the field of deprivation or restriction of liberty,
delivered to the Council delegations in March 2023(
17
). The executing authority
cannot refuse to execute an EAW based on proportionality concerns(
18
).
23
In its handbook on the EAW(
19
), the European Commission stresses that any
EAW should be proportionate to its aim and justified in each particular case
based on its circumstances(
20
). Accordingly, it proposes a list of factors that
judicial authorities should assess when considering whether to issue an EAW,
namely (a) the seriousness of the offence, (b) the severity of the penalty
likely to be imposed, (c) the likelihood of detention of the requested person
in the issuing Member State after surrender and (d) the interests of the
victims of the offence(
21
). The handbook also encourages issuing judicial
authorities to consider whether another judicial cooperation measure that
is less restrictive could be used instead of an EAW, by giving examples of
such measures(
22
). For instance, a suspect located in another Member State
could be examined via video link or by the authorities of that state, and if
considered necessary those authorities could execute a non-custodial
supervision measure against the suspect. The relevant instruments discussed
in the handbook are the European Investigation Order(
23
), transfer of
prisoners(
24
), the European Supervision Order(
25
), transfer of probation
decisions and alternative sanctions(
26
), mutual recognition of financial
penalties(
27
) and transfer of criminal proceedings(
28
).
National laws
National laws govern the procedures for issuing an EAW and rule on whether
or not the national (judicial) authorities have the capacity to issue such
warrants(
29
). Most Member States covered by this research permit the issuing
of warrants for the purpose of prosecution of a criminal offence punishable
with a maximum sentence of imprisonment of at least 12months or execution
of a custodial sentence if the term of imprisonment imposed or the remainder
of it is at least 4months (Croatia(
30
), Cyprus(
31
), Czechia(
32
), Estonia(
33
),
Finland(
34
), Hungary(
35
), Ireland(
36
), Latvia(
37
), Lithuania(
38
), Malta(
39
),
Portugal(
40
), Slovakia(
41
), Slovenia(
42
), Spain(
43
) and Sweden(
44
). Luxembourg
has slightly different conditions. For example, to issue a warrant for the
purpose of prosecuting a criminal offence, the offence must be punishable
by at least 2years of imprisonment, with certain exceptions(
45
). In addition,
in Belgium, to avoid problems in practice with EAWs issued for trivial offences,
for the purpose of executing a sentence no EAW is to be issued if the sentence
remaining to be served is less than 2years(
46
). Certain exceptions exist, for
example if the nature of the crime is very grave, such as a crime against a
child, a sexual offence or a terrorist offence(
47
) .
The national laws of some Member States explicitly refer to the principle of
proportionality as a guiding principle for national judicial authorities, which
should ensure that EAWs are proportionate to their objectives (Belgium(
48
),
Croatia(
49
), Czechia(
50
), Hungary(
51
), Latvia(
52
), Lithuania(
53
), Slovakia(
54
)
and Sweden(
55
). Other Member States derive the obligation to have recourse
to the principle of proportionality from their constitutional orders (Germany(
56
),
Portugal(
57
), Slovenia(
58
) and Spain(
59
). Some laws also refer to other
conditions that in practice serve to ensure that the proportionality of the
measure is assessed, for example:
― ‘serious indications of guilt’ (Belgium(
60
) and Luxembourg(
61
);
―
grounds for suspecting that the requested person will not arrive voluntarily
for the consideration of the charges, based on the personal circumstances
of the requested person, the number and nature of the offences on which
the request for extradition is based or other relevant circumstances
(Finland(
62
);
―
reasonable grounds for believing believe that a person has either (a)
committed an extraditable offence or (b) unlawfully fled the country
after being convicted of an extraditable offence (Malta(
63
).
24
National
case-law on
the principle of
proportionality
Spain
The Constitutional Court has established that proportionality should be considered when
adopting any measure restricting fundamental rights. The court has ruled that ‘the
constitutionality of any measure restricting fundamental rights is determined by strict
observance of the principle of proportionality’. The court has provided guidance on how to
apply it; accordingly, the national authorities must consider:
― whether the measure is likely to achieve the proposed objective (assessment of suitability);
― whether, in addition, it is necessary, in the sense that there is no other more moderate
measure that could achieve the intended purpose with equal effectiveness (assessment of
necessity);
― whether, finally, it is weighted or balanced, in that it is likely to create more benefits or
advantages in the general interest than harm to other goods or values in conflict with it
(proportionality assessment in the strict sense).
Although not an EAW-specific ruling, the above proportionality criteria make it possible to
determine whether the issuance of an EAW is justified on a case-by-case basis, given the
consequences that its execution has for the fundamental rights of the defendant.
Source: Judgment of the Constitutional Court of 3March 2016 in Case 39/2016 (Sentencia 39/2016, de 3 de
marzo), Official State Gazette, No85, 8April 2016.
Portugal
The Porto Court of Appeal has explained that, since the execution of an EAW constitutes a
major restriction on a fundamental right, namely the right to liberty, and bearing in mind the
length of time that detention might last without a final decision being taken, the decision to
issue an EAW has to comply with, among other things, the principle of proportionality. This
means that the EAW must comply with three subprinciples.
― Adequacy. Is this measure the most appropriate for the case?
― Necessity. Is this measure that which will create the smallest burden?
― Proportionality in the strict sense. Is the measure the fairest available?
Source: Decision of the Porto Court of Appeal in Case 612/08.4GBOBR-A.P1 (Acórdão do Tribunal da Relação
do Porto– Processo 612/08.4GBOBR-A.P1), 18March 2015.
Laws in the vast majority of Member States covered do not allow for the
possibility of a requested person or their lawyer challenging the issuance of
an EAW. Only in Croatia(
64
), Slovakia(
65
) and Spain(
66
) do laws provide for
legal avenues to challenge the issuance of an EAW.
Executing a European Arrest Warrant
When a person is arrested based on an EAW, the authorities of the arresting
Member States decide whether to execute the warrant by surrendering the
requested person to the authorities of the issuing Member State. First, the
executing authorities should examine whether the conditions and requirements
for issuing the EAW have been complied with (e.g. whether it has been issued
for one of the offences for which it can be used, whether it has been issued
by a judicial authority subject to judicial review). If not, the executing
authorities should refuse to execute it(
67
). The CJEU has further clarified that
an EAW should be executed only by a ‘judicial authority’; what constitutes
such an authority is determined based on the same criteria used for issuing
authorities(
68
). Moreover, for the detention of a requested person to be
lawful, the deprivation of their liberty must follow a procedure prescribed
by law, as required by Article5(1) of the European Convention on Human
Rights (ECHR) and reflected in Article6 of the Charter. The European Court
of Human Rights (ECtHR) has pointed out that Member States’ judicial
authorities must comply with substantive and procedural national law for
detention to be lawful under Article5(1)(f) of the ECHR, which specifies the
25
arrest or detention of a person with a view to extraditing the individual as
a lawful ground for deprivation of liberty(
69
).
A person arrested based on an EAW may consent to be surrendered after
being properly informed about this possibility and having had the opportunity
to exercise their right to access a lawyer(
70
). If it is done ‘voluntarily’ and
while the requested person is ‘fully aware of its consequences’, the requested
person may also waive the application of the speciality rule before the
executing judicial authority(
71
).
Consent to
surrender and
the speciality
rule
The speciality rule entails that a requested person is generally surrendered in respect only
of the offences specified in the EAW, and it can therefore block prosecution or punishment
for other offences not listed in the EAW(*). The requested person may, however, waive the
application of the speciality rule. This may take place either automatically when they consent
to their surrender or separately. The waiver of the speciality rule follows automatically from
consent to surrender where the executing Member State has notified the General Secretariat
of the Council that it will, in its relations with other Member States that have given the same
notification, apply a presumption of speciality rule waiver. This applies unless in a particular
case the executing judicial authority states otherwise in its decision to surrender(**). Where
no such notification has been made, the speciality rule must be renounced separately. The
executing Member State should, in accordance with Article13(2) of the EAW framework
decision, ensure that any consent to surrender and, where this is a separate legal act, any
renunciation of the speciality rule are voluntary and have been expressed in full awareness of
the consequences. The requested person must therefore be fully informed about the meaning
and consequences of consent and waiver(***). The requested person’s consent and waiver of
the speciality rule must also be formally recorded.
(*) Council Framework Decision 2002/584/JHA, Article27(2). See, however, the applicable exceptions
set out in Article27(3).
(**) Council Framework Decision 2002/584/JHA, Articles13 and 27(1).
(***) Council Framework Decision 2002/584/JHA, Article27(3)(f).
In principle, consent to surrender may not be revoked, but Member States
are allowed to have different laws on that issue(
72
). If the requested person
consents to their surrender, the proceedings should be concluded within
10days with the person’s surrender to the issuing state(
73
). In certain cases,
giving consent may mean that the requested person automatically renounces
the application of the speciality rule; that is, the requested person could also
be prosecuted in connection with offences not mentioned in the EAW. This
circumstance arises when the relevant executing Member State has notified
the General Secretariat of the Council about such interplay between consent
to surrender and the speciality rule(
74
). For more details on informed consent
and information on the speciality rule, see Chapter3.
The EAW framework decision includes lists of mandatory and optional grounds
on which the executing judicial authority should or may refuse to surrender
the requested person(
75
). The CJEU has clarified that, in principle, Member
States are not allowed to invoke other reasons for not executing an EAW(
76
),
and a potential violation of the fundamental rights of the requested person
is not listed as a ground for refusal to execute an EAW(
77
).
Nevertheless, the CJEU has ruled that, exceptionally, the execution of an EAW
should not proceed if fundamental rights issues, such as freedom from
inhuman or degrading treatment and right to a fair trial, are at stake. Examples
would include the requested person being at real risk of a fundamental rights
violation in light of the detention conditions in the issuing Member State or
being at risk of a breach of essential aspects of the fundamental right to a
fair trial(
78
). The existence of a legal remedy in the issuing Member State
26
does not rule out the existence of such a real risk(
79
). National courts should
apply a two-fold test in this regard: (1) assess whether systemic or general
deficiencies exist in the issuing Member State with regard to prison conditions
or the independence of the judiciary and (2) determine whether such
deficiencies are likely to have or have had an impact on the requested
person’s case(
80
).
In addition, the CJEU also recently clarified how to handle a situation in which
a seriously ill person is to be surrendered to a state in which the required
medical treatment may not be available(
81
). This jurisprudence is in line with
ECtHR case-law(
82
).
FRA’s work
on detention
conditions
Report: Criminal Detention Conditions in the European Union: Rules and reality, 2019
This report focuses on five core aspects: the size of cells; the amount of time detainees can
spend outside their cells, including outdoors; sanitary conditions, including from a privacy
perspective; access to healthcare; and whether detainees are protected from violence. This
report covered all Member States and the United Kingdom.
The Criminal Detention Database 2015–2022 (https://fra.europa.eu/en/databases/criminal-
detention/)
The database contains information on detention conditions in all 27 EU Member States and
the United Kingdom. It provides information– drawing on national, European and international
standards, case-law and monitoring reports– on selected core aspects of detention conditions,
which are relevant to the assessment of detention conditions when executing an EAW.
As noted previously, the executing authority cannot refuse the execution of
an EAW based on proportionality concerns, including concerns about the
possible disproportionality of the sentence that might be handed down in
the issuing state(
83
). One exception is if the offence with which the requested
person is charged is punishable with a custodial life sentence or lifetime
detention order(
84
). In such an instance, the executing authority may condition
the execution of the EAW on a review of the life sentence or lifetime detention
order after 20years, or on the requested person being able to apply for
measures of clemency (e.g. provisional release)(
85
).
National laws
National laws determine the course of EAW proceedings, including the
application of detention and possibilities for release pending proceedings(
86
).
In general, the Member States covered have adopted the grounds for refusal
listed in the EAW framework decision. Laws in some states refer to additional
factors to be considered when executing an EAW, including the following.
―
Proportionality must be taken into account in Germany(
87
), Latvia(
88
)
and Spain(
89
), and general principles of national law with proportionality
considered one of them are to be considered in Estonia(
90
). In Slovenia,
proportionality is a constitutional principle that must always be considered
when depriving a person of their liberty(
91
).
―
Provisions in some national laws refer to compatibility with fundamental
rights (Belgium(
92
), Finland(
93
), Hungary(
94
), Italy(
95
) and Lithuania(
96
)
or with the ECHR and its protocols (Ireland(
97
) and Sweden(
98
), or, more
specifically, state that the prohibition of discrimination is to be taken into
account (Estonia(
99
). Portugal derives the obligation to consider
fundamental rights from its constitution(
100
).
―
In Finland, humanitarian concerns (e.g. the individual situation of a
requested person, including their health and age) are a relevant factor(
101
).
27
― The age of the requested person (whether or not they are a minor) is to
be taken into account in Luxembourg(
102
) and Malta(
103
).
― Security and the essential interest of the state are relevant factors to be
considered in Estonia(
104
).
B. FINDINGS: ISSUING AND EXECUTING A EUROPEAN
ARREST WARRANT IN PRACTICE
This section focuses on fieldwork findings concerning selected fundamental
rights of requested persons during the process of issuing and executing an
EAW.
The research finds that, when issuing an EAW, the authorities do tend to
consider the proportionality of the measure– meaning that the intended
objective is weighed against the measures necessary to achieve it. This is,
however, not done systematically.
When executing an EAW, national authorities tend to rely on the principles
of mutual trust and mutual recognition and only exceptionally do they consider
whether and how the execution and then surrender of the requested person
will affect their fundamental rights.
Issuing a European Arrest Warrant
By issuing an EAW, the authorities indicate that the requested person is
sought either for prosecution for a crime or for execution of an existing
sentence of imprisonment and therefore should be arrested in another
Member State and brought to the issuing Member State.
Assessment of proportionality when issuing the European Arrest Warrant
in practice
Professionals from all groups across Member States agreed that the legal
requirements on issuing an EAW are very clear and always adhered to. The
assessment of proportionality (that is, of whether it is necessary in the
particular circumstances to resort to arrest and surrender) does, however,
inevitably involve some margin of appreciation resting on the relevant judicial
authorities.
Proportionality should be a key element, but it is not always. It should
be a preponderant factor because, in fact, when fundamental rights
are involved, proportionality and adequacy are criteria that must
necessarily be considered. This is what is being discussed and
sometimes it does not happen. Lawyer, Portugal.
It is certainly one of the principles that must be kept in mind. So...
one does not issue a European Arrest Warrant for a theft of 50euro
at the supermarket. Judge, Italy.
Professionals in the Member States covered by the research were divided
on whether proportionality is indeed generally properly considered when
issuing an EAW. Judges and prosecutors from Czechia, Finland, Malta and
Slovakia explained that an EAW should not be issued if the case could be
resolved in any other manner. This is based on proportionality considerations,
given that an EAW typically results in the requested person’s liberty being
restricted for weeks or even months in the executing state. A prosecutor
from Finland had estimated that it takes approximately 70days after arrest
(during which time the person may be detained) until a requested person is
surrendered to Finland.
28
Proportionality... is a key factor. So, it depends on the severity of the
case…. We do not really issue EAWs frivolously because we understand
what it entails. We understand we are restricting another person’s
liberty in another country to be returned to Malta. Therefore, even if
a considerable amount of time passes and we do not deem it to be
proportional together with the crime, we would not issue any EAW.
Prosecutor, Malta.
A judge interviewed in Luxembourg specified that the proportionality
assessment takes into consideration factors such as:
― the severity of the facts;
― the systematic refusal or otherwise of the requested person to present
themselves to the authorities;
― the time that has elapsed since the offence was committed;
― the number of victims.
Judges and prosecutors interviewed in Estonia, Finland, Ireland and Italy
added that they also look at:
― whether potential future punishment for a person is sufficiently severe
that it is worth issuing an EAW;
― the amount of damage caused;
― the number of victims;
― the requested person’s personal situation;
― the public interest.
A judge from Slovakia mentioned that proportionality can also play a role in
situations in which there are several suspects and one of them has fled the
country. The court can assess whether, in pursuing the public interest, the
presence of the accused person who has fled is necessary, and whether the
proceedings can be concluded without them.
If I come to the conclusion that I will undoubtedly propose a prison
sentence that is longer than 4months, then I can initiate the EAW.
Should I come to the conclusion that I won’t [propose such a sentence],
then I should not make a motion to initiate an EAW. And, of course, I
must include this reasoning in the materials submitted to the court,
because in any case it’s the judge who issues the EAW, and the judge
should do the same kind of reasoning. Prosecutor, Czechia.
Commenting on the severity of the facts, a prosecutor from Ireland stated
that, in general, an EAW would be issued in Ireland only for serious crimes,
but it might be considered for some less serious crimes if they seemed to
be part of a wider pattern of offending.
In some cases, we can’t look at the effects in isolation. If you take,
for example, a credit card fraud case, that might seem quite minor
on its own, but there might be a background which shows that it’s
part of a greater scheme of offending which is detrimental to the
interests of society, and also to the European public, if we have forum
shopping for credit card offences. National judicial authority, Ireland.
Interviewees also added that serious indications of guilt play a role in the
proportionality assessment. A judge from Luxembourg explained that there
must be several indications of guilt (e.g. results of a preliminary investigation,
fingerprints or DNA evidence) to establish grounds for believing that the
requested person has committed the offence in question.
29
Judges and prosecutors interviewed in Czechia, Finland and Slovenia pointed
out that proportionality is assessed as part of the decision on remand upon
which the EAW is based. The interviewees agreed that an EAW is issued only
in cases where it is necessary.
Echoing this, a prosecutor from Portugal added that, since an EAW is issued
with the purpose of arresting a person, it is only for those situations in which
a coercive measure of pre-trial detention can be applied and there is a
likelihood that it will be applied. If a request for pre-trial detention would be
likely to be denied, an EAW should not be issued.
If the proportionality criteria are not met, I will never be able to justify
a pre-trial detention, there is no sense in issuing an arrest warrant.
We usually follow... good rules. There are materials that explain to
public prosecutors how to fill in warrants, materials from Eurojust [the
European Union Agency for Criminal Justice Cooperation] and Sirene
[supplementary information request at the national entries]. If the
evidence is not strong, if it is mere... suspicion, it is not enough to
issue the arrest warrant for that person…. There must be strong
evidence of a crime, and then we have to apply the criteria of
proportionality, subsidiarity and exceptionality. Prosecutor, Portugal.
Several interviewees expressed concerns regarding the frequent issuing of
EAWs for minor offences. This practice can result in instances of deprivation
of an individual’s liberty that are disproportionate to the gravity of the offence.
Sometimes I find that EAWs are issued for trivialities, and I find this
incomprehensible. In our practice, when we make an EAW, it really
concerns serious facts, and you get the impression that this is not the
case with other countries and that it is more some sort of bureaucracy
that makes a selection…. In my view, the thresholds of punishment
are too low. It really should be used as an exception…. I really think
it is an important point to work on. Judge, Belgium.
Professionals and requested persons highlighted that imprisonment and
extradition also affect other individuals, such as the requested person’s
children and other family members.
30
A requested person arrested in Italy based on an EAW issued by Greece
complained about disproportionate use of the measure. Apparently, the
warrant was issued erroneously and was later revoked; however, the
interviewee was arrested and spent some time in detention.
There are countries who abuse... this system [the EAW]. They issue
warrants for whatever. And the burden of proof falls on you. … there
should be checks and balances on how they issue these warrants, on
what grounds and how they even revoke them, because they never
explain. They just sent, you know, two lines to the ministry saying
that it’s been revoked. On what ground did you issue it? On what
grounds you revoked it? It was almost like a joke because I spent two
nights in the highest security prison and my kids had to go to social
services during that period. They were traumatised. You can’t just
joke around with people’s lives like that, and now there’s a risk that
they might do it again. Requested person, Italy.
Another issue highlighted by the interviewees– especially defence lawyers–
is how formalised EAW proceedings are once the EAW has been issued.
Lawyers from Spain and Malta referred to cases in which the EAW could not
be withdrawn even though it was clear that it should have been, for example
because it had been issued to enforce a penalty such as a fine or suspended
sentence.
In practice, a person is arrested and pulled out of their job, which they
will potentially lose because they will [be] completely absent for 2
to 6weeks, if all goes well. I had a situation where there was a child,
a man and a wife who was going to give birth in 8weeks. There was
another one where a woman was requested, but she was heavily
pregnant and could not physically withstand it. In all these cases,
most of those were suspended sentences of imprisonment. They
were not serious crimes. Lawyer, Malta.
A lawyer from Belgium elaborated on the example of a client who was
requested by Germany. The client insisted on his innocence and proposed
to cooperate fully with the German authorities by voluntarily going to Germany
to be interrogated. The German authorities declined and insisted on the
surrender of the individual pursuant to an EAW. For the lawyer, this represented
a good example of a disproportionate and unnecessary use of an EAW. The
same lawyer also mentioned that it should be possible for an executing state
to propose alternatives to surrender, such as serving the sentence in the
executing state (as an alternative to serving it in the issuing state).
Some lawyers and judicial authorities have noted a change in approach; in
their view, proportionality is increasingly assessed more carefully than it was
in the past. A lawyer from Estonia believes that no country has enough
money to issue and pursue arrest warrants for petty crimes, so most EAWs
today are probably justified, if only for that reason. A couple of other
interviewees mentioned that Poland had in the past been an example of a
country that had issued disproportionate EAWs, stating that it had issued
EAWs on very questionable grounds and that it had taken considerable
resources, time and money, to process such EAWs. A prosecutor from Slovakia
referred to EAWs issued for evading an alimony obligation, which in many
countries is not even a criminal offence. These types of EAWs from Slovakia
were routinely refused by the United Kingdom. Now Slovakia would not issue
an EAW for a person who had allegedly committed the criminal offence of
neglecting payment of alimony.
31
We have been very [strongly] criticised by the European Union
institutions for slowing down the whole process, so basically, yes,
these factors are being taken into consideration, but we have adapted
the process itself to speed up the whole proceedings. Prosecutor,
Slovakia.
Some interviewees added that, when issuing an EAW, the courts should also
evaluate the individual situation of the requested person. However, other
interviewees pointed out that individual characteristics are very often not
considered because the issuing authorities are not aware of them, and the
matter is only assessed if the issue is specifically raised, as explained by a
prosecutor in Portugal.
Usually, we don’t even know.… We don’t know if they are married,
if they have children, what kind of life they lead, we don’t have that
information and therefore we don’t consider it. But, even if we did,
it would be difficult for their personal situation to change all the
reasoning of proportionality and seriousness of the crime and [for us
then to] not issue the warrant. But information about the person,
usually, we don’t have much. Prosecutor, Portugal.
When proportionality is not assessed
It should be noted that there is no agreement among the interviewed
professionals as to whether proportionality is always considered when issuing
EAWs.
When issuing an EAW, what is taken into account is just that there is
a person who has evaded justice and who must be arrested and
brought to justice. I don’t think anything else is considered. Lawyer,
Spain.
Spain is a country prone to imprison[ing] individuals. The first reaction
is to issue the EAW, have a person arrested and then taken to the
airport, with all the costs and inconvenience that entails. In most
cases, this can be arranged in a more civilised manner. Lawyer, Spain.
A lawyer interviewed in Portugal pointed out that it is difficult to know if
national authorities actually consider this principle, because there is no
decision or document in which that information must be recorded.
When there is no EAW, it [may be] because they took the principle
of proportionality into account, but there is no decision to say this. I
have situations where it is clearly admissible to issue an EAW and the
judges did not. Maybe because they thought it wasn’t justified, but
there’s no decision to say that. Lawyer, Portugal.
A judge from Luxembourg admitted that, in cases involving certain crimes,
an EAW is always issued if the legal requirements are fulfilled, and judicial
authorities do not look at proportionality. Such a ‘zero tolerance’ approach
applies to, among other crimes, the crime of theft with break-in. There is,
furthermore, zero tolerance for child abuse, homicide or severe assault.
Use of other instruments
Defence lawyers from a number of Member States consider that the EAW is
overused because it is issued very often in cases in which other instruments–
such as a European Investigation Order, the transfer of prisoners framework
decision or a European Supervision Order– could be used.
32
There is an abuse of the issuance of EAW[s] to the detriment of the
European Investigation Order. Lawyer, Spain.
Lawyers from Italy also believe that the European Investigation Order should
be used more frequently in cases involving ongoing investigations, rather
than issuing an EAW for the mere purpose of questioning a defendant.
Additional
instruments
The European Investigation Order is a judicial decision issued or validated by a judicial
authority in one Member State in order to request the authorities in another Member State to
conduct investigative measures to gather or use evidence in criminal matters.
The European Supervision Order establishes a system whereby the decision of a judicial
authority in one Member State (the issuing state) imposing supervision measures on a non-
resident defendant as an alternative to pre-trial detention can be forwarded to the defendant’s
state of residence (the executing state), which then has to recognise the decision and
supervise the defendant itself.
I think there is still a bit of unpreparedness, in the sense that I have
noticed that sometimes... the other tools available are not sufficiently
known. This obviously depends on the training provided to the various
categories. Certainly, the situation has improved, because I know that
in the last few years there has been a very important increase both
in the training of lawyers and in the training for judges and prosecutors,
in relation to all the European directives and framework decisions,
therefore also those relating to procedural rights in general.… And
here I would like to hope that recourse is made to the EAW instrument
only when it is actually necessary. Lawyer, Italy.
The experts who participated in FRA’s experts’ meeting on the EAW in October
2022 noted that, in an ideal world, less coercive measures than the EAW
would always be considered first. Some pointed out that the extent to which
the various alternatives to the EAW are used varies. While the framework
decision on the European Supervision Order(
105
) is not used at all and the
framework decision on probation measures(
106
) is used quite rarely, the
framework decision on the transfer of sentenced persons(
107
) is used quite
regularly.
Views on the usefulness of the European Investigation Order as an alternative
to the EAW differed somewhat, but the experts concluded that such orders
could be used to replace EAWs, for instance where the person was sought
only for questioning. The experts admitted, however, that the EAW is the
instrument most often used, as judicial authorities have experience with it,
whereas they may not have experience with other (less coercive) instruments.
Challenging the issuing of a European Arrest Warrant on the ground of
failure to consider proportionality
When asked to reflect on whether a EAW could be challenged by the requested
person or their lawyer on grounds of proportionality, professionals across all
Member States agreed that in general challenging the issuing of an EAW is
very difficult and that it would be particularly difficult to challenge it on the
basis that the measure was disproportionate.
While not completely dismissing such a possibility, lawyers from Finland,
Portugal and Spain pointed to practical difficulties, such as, first of all, being
aware that the EAW has been issued and then establishing which court issued
it, which can be difficult given the large number of courts. Once this has been
33
done, however, the issuance can be challenged on proportionality or other
grounds.
We can use that reason to challenge it. If Portugal is [the] issuing
state, we can challenge it when we know there is an EAW. When we
are [the] executing state, we cannot use these grounds. We can try,
but it is usually refused because these grounds have to be invoked
in the issuing state. Lawyer, Portugal.
However, the majority of participating lawyers considered that the issuance
of the EAW cannot be challenged.
I would like to meet the lawyer who will obtain this nullity. I would
like to congratulate them. I am not saying that it is not possible.
Lawyer, Luxembourg.
As highlighted by a lawyer from Malta, this gap became apparent in the case
of Police v George Clayton, in which the Maltese authorities issued an EAW
against Mr Clayton for fraud. Faced with possible surrender and prosecution,
Mr Clayton repaid the money owed to the victims. In light of this, the victims
expressed to the Maltese authorities that they no longer wished Mr Clayton
to face criminal proceedings. The repayment of the funds also meant that,
according to Maltese precedent, Mr Clayton would face significantly reduced
penalties upon return. The Maltese authorities refused to withdraw the
warrant despite the victims’ wishes and the limited likelihood that Mr Clayton
would receive a custodial sentence. With no official legal means of challenging
the EAW, and informal discussions having failed, Mr Clayton was surrendered
to Malta from the United Kingdom and brought to court(
108
).
Some interviewees from Czechia, Germany and Ireland (lawyers, judges and
prosecutors) concluded that indeed there is no procedure and no precedent,
but it does not mean that this is impossible.
There is no set procedure, but, yes, I think in Ireland everything is
capable of challenge. National judicial authority, Ireland.
Executing a European Arrest Warrant
In executing an EAW, the authority in the executing state has to decide
whether and under which conditions to surrender the requested person to
the issuing state.
Executing a European Arrest Warrant in practice
The interviewees in all the Member States covered stated that the execution
of an EAW is a quick, almost automated process. The refusal grounds (both
mandatory and optional) listed in the EAW framework decision are always
considered. However, so-called new grounds for refusal, introduced by the
CJEU case-law based on the fundamental rights of requested persons, are
emerging, and professionals have witnessed the gradual process of their
becoming more widely used in practice.
These fundamental rights considerations include, for example, the conditions
of detention in the issuing state, the right to a fair trial in the issuing state
and the individual situation of the requested person.
Conditions of detention
Judges, prosecutors and lawyers from several Member States agreed that
the conditions of detention in the issuing state are the factor most commonly
used to challenge the execution of an EAW. However, whether conditions of
detention are actually taken into consideration when executing an EAW
34
varies among Member States. Interviewees from Belgium, Finland, Germany,
Ireland, Italy, Luxembourg and Sweden stated that, in general, conditions of
detention in the issuing Member State are considered when executing an
EAW, in particular one issued by Hungary or Romania. In contrast, fieldwork
findings from other Member States, such as Croatia, Lithuania, Portugal,
Slovenia and Spain, show that detention conditions are not always automatically
considered by the relevant authorities. Instead, detention conditions are
considered only when the requested person or their lawyer claims that
surrender would result in a risk to the requested person.
Interviewed lawyers from several Member States said that, when considering
the detention conditions in the issuing state, they rely on data from reliable
institutions and supranational bodies(
109
). However, lawyers from Malta felt
that they were not able to access sufficient reliable data concerning detention
conditions.
From my point of view, the United Kingdom system is the best system
to check vis-a-vis the detention conditions and facilities in every
jurisdiction. Why? Because in the British system they issue a report
per prison facility, which is publicly available, because the supervisor
is an officer of parliament. Other states do not have this model. Here,
we are working on the basis of a status report for a whole jurisdiction,
which is on average 1 to 2years late, and not specific to the place of
confinement where the individual will be when extradited. Lawyer,
Malta.
However, interviewees from various Member States noted that, even in
situations in which the lawyer successfully presents evidence that detention
conditions are inadequate, diplomatic assurances provided by the issuing
state can reduce the impact of this evidence.
Detention conditions in the issuing state are one of the most often
victorious grounds for appeals in Italy because there is now a strong
influence of European and Italian jurisprudence prohibiting surrender
when there are undignified standards of detention. Bear in mind that
this is mitigated by so-called diplomatic assurances or additional
information, because, if Italy asks Belgium what the standard of
detention is like and Belgium replies that it is fine, Italy is still obliged
to execute the EAW. Lawyer, Italy.
There is also a general shared belief among the interviewees from all groups
that standards of detention conditions remain high across the EU, and
authorities tend to rely on the principle of mutual trust and on the assumption
that common standards are met.
I would find it extremely hard ever to conceive that within the European
Union there is someone who can legitimately claim that there’s a
prison which doesn’t respect human rights. Regardless of the facts,
I find it hard to prove it. Lawyer, Malta.
However, some lawyers, judges and prosecutors from Czechia, Lithuania and
Latvia highlighted unsatisfactory conditions within their own Member State,
giving this as a reason for remaining silent on conditions in the issuing state.
Many arrested persons first say that they most definitely do not agree
with being handed over, but after 14days in our custody they ask us
to be handed over [to the issuing state] as soon as possible. They
say, ‘I’ve served time in various places, but there are few places where
the space is so small and the conditions as horrible as here.’ So
35
everyone wants to be handed over to Germany immediately, because
they know that at the Pankrác prison there are barely 3square metres
per person.… And you see eleven of them sleeping on six cots, and
you see a table there with three chairs. And they have the right to
shower [only] twice a week even though they work. Judge, Czechia.
Meanwhile, several of the requested persons interviewed during the fieldwork
highlighted the poor conditions of detention that they had experienced in
either the issuing or the executing state.
It was shameful and inhumane... I have terrible things to say about
Greece. Not only they issued an absurd accusation against me, a
warrant on completely baseless things, when I was arrested there, I
was arrested actually with three of my children. They put us in
detention in conditions that I cannot begin to explain. There was
human excrement on the floor. They literally treated us like dogs. I
was afraid of my life and my children’s safety. We were put without
food, without any facilities for 48hours in a hole, in a dark hole. Being
a mother with three kids, I did not sleep for 48hours because I didn’t
know what would happen there, both from the people with whom
we were sharing the cell and from the guards themselves. The
policemen, they called me bitch. They questioned me in Greek, which
I did not understand. They kept accusing me of things, and [they
made] me and my 12-year-old son sign some papers that we have
not, to this day, understood. They arrested us at 4a.m., and then they
just threw us in a hole and locked the door for 48hours. Requested
person, Italy.
Individual situation
When issued with an EAW, the executing authorities may invoke fundamental
rights and consider the individual situation of the requested person to suspend
or refuse the execution of the EAW. When it comes to what these ‘individual
situations’ actually are, the interviewees identified an array of factors that
can often influence the decision-making process when executing an EAW.
These include but are not limited to humanitarian grounds, health issues,
pregnancy, disability and family reasons. However, the interviewed professionals
provided diverging responses as to whether the individual situation of the
requested person is in fact considered when executing an EAW.
Interviewees from Croatia and Estonia suggest that, in practice, the individual
situation of the requested person is not examined. For example, in Estonia,
apart from one prosecutor, all interviewees argued that the individual situation
is usually not considered because of the formalised procedure. In Croatia,
interviewees referred to the notion of mutual trust among EU Member States
as a reason for not factoring the individual situation into the decision-making
process. However, a prosecutor from Croatia noted that the individual situation
of a requested person is considered when dealing with an extradition request
from a non-EU country.
There is a consensus among the interviewed professionals that health reasons
are the aspect of the individual situation that would be most likely to affect
the execution of the EAW. As one defence lawyer in Lithuania commented,
‘It is natural that no one would put a sick person in handcuffs on a plane.’
Moreover, in Cyprus, for instance, it was noted that it would be rare for the
court to consider any issues other than health. However, even health reasons
will not always successfully impact the execution of an EAW.
We have cases when the [requested person] is [fatally] ill and still
we have to hand them over if the other side does not understand the
36
seriousness of the situation and does not take the EAW back.… We
have an EAW now– the previous warrant was withdrawn, and a new
EAW was issued. The [issuing authorities] knew already that the
person in question has terminal cancer and needs constant care. But
still [the person’s health] was not considered. Prosecutor, Czechia.
The interviewees also identified pregnancy as a common reason for
postponing the execution of an EAW. Moreover, some interviewees raised
more nuanced reasons, such as mental health issues (Slovakia) or the
advanced age of the requested person (Slovenia). Family reasons and
humanitarian grounds were also mentioned by most of the interviewees as
factors that the authorities will consider when executing an EAW. In some
Member States, including Italy and Luxembourg, family ties and length of
residency in the Member State appear to be important factors when
considering the execution of the EAW.
So, if someone lives here, is married or not, has children, or other
family members here, a job for several months or even several
years, this is taken into account, and this may result in... refusal to
surrender. However, the initiative must still come from the arrested
person or the lawyer. But I guarantee you that the Public Prosecutor’s
Office also make every effort to provoke [such a] request. The person
provides sufficient evidence of their stable situation to serve the
sentence in Luxembourg rather than in the issuing country. Judge,
Luxembourg.
A lawyer from Malta added that courts should look at a combination of
factors: the individual situation in connection with the seriousness of the
crime and the time that has elapsed since it was committed.
However, the research finds that family connections will not always successfully
impact the execution of the EAW, as Member States assess this on a case-
by-case basis.
The family situation [of the requested person] has not been considered.
I have had a case in which the requested person had many small
children [and was nevertheless surrendered]. Lawyer, Finland.
Humanitarian reasons were also found to be a factor commonly taken into
account, with several interviewees noting that surrender may be denied or
suspended for such reasons. However, one Lithuanian judge noted that
exceptional humanitarian considerations rarely exist within the EU. In
addition, findings from Finland indicated that the threshold for refusal to
surrender based on humanitarian grounds is very high.
The findings appear to show that, when the individual situation of a requested
person is considered, this is more likely to result in the postponement or
suspension of the execution of the EAW than refusal to execute it. However,
refusal to execute the EAW does occur. For instance, in Ireland interviewees
noted that, while it is rare for the court to refuse to surrender a requested
person altogether on humanitarian grounds, it has happened. Interviewees
from other Member States, such as Slovakia, made similar remarks.
Some defence lawyers in Malta criticised courts for failing to factor in the
severe consequences that the execution of the EAW has on the requested
person’s family life and liberty. One of the interviewees suggested that, to
improve the situation, a proportionality bar could be introduced for EAW
cases that would set out specific parameters and limits to be respected when
deciding on issuing an EAW.
37
The way our legislation handles the EAW procedure reflects the
mentality that any EAW is believed to be a ‘DHL package’ procedure,
where they arrest, bind, gag and send them over as fast as possible.
This is wrong and against the spirit of the law. As defence lawyers,
we strongly contest the way Malta has implemented the framework
decision because truly Malta has made a mess of it. Lawyer, Malta.
Right to a fair trial
Interviewees provided varying responses as to whether the executing state
considers whether the fair trial rights of requested persons have been or
will be complied with in the issuing state. While there is a well-established
practice requiring the executing state to verify whether numerous safeguards
were in place if the requested person was tried in absentia(
110
), other issues
related to the right to a fair trial before a tribunal established by law are still
treated in varying ways.
While professionals in Finland agreed that the right to a fair trial is considered
before executing an EAW, interviewees in other Member States, such as
Belgium, Lithuania and Slovenia, provided diverging responses. However,
the most common position among interviewees from other states was that,
when executing an EAW, the authorities do not automatically consider the
requested person’s right to a fair trial in the issuing state.
Once again, interviewees referred to the principle of mutual trust and common
minimum standards within the EU. As noted by one Portuguese judge, ‘the
principle of trust is the basis of the European Arrest Warrant’. The findings
show that there is an assumption that a requested person will receive a fair
trial in the issuing state. One Estonian judge even noted that raising concerns
about another Member State’s respect for rule of law could result in diplomatic
tensions.
However, that is not to say that the requested person’s right to a fair trial
will never be looked at. As noted by several of the interviewees from Cyprus,
Czechia, Estonia, Malta, Slovenia, Spain and Sweden, it is up to the defence
to raise violations of procedural rights in the issuing state.
It would come into question if the defence lawyer brought it up as
an argument, but we are talking about EU Member States– in which
state can we say that there is no fair trial? This is a very complicated
problem. How can the Estonian law enforcement agency say about
another Member State that, in our opinion, they do not have a fair
38
trial? We are not talking about third countries that we know nothing
about. The principle of mutual trust applies in the EU. Prosecutor,
Estonia.
Professionals from several Member States, such as Belgium, Finland, Germany,
Lithuania, Malta, Portugal, Slovenia, Spain and Sweden, agreed that the
requested person’s right to a fair trial in the issuing state would be considered
if that person was tried in absentia. The findings highlighted that in that
situation the relevant authorities will assess whether all necessary safeguards
were complied with in the issuing state. Interviewees also emphasised that
the authorities in the executing state will examine whether there is a legal
remedy available against the judgment before executing the EAW.
If a requested person was tried in absentia, we examine whether
they have the right to an appeal or retrial. We only examine the
requirements explicitly mentioned in the law: if they were summoned
to appear in court, if they were aware that they would be judged in
absentia, if their lawyer was present, etc. The requirements contained
in the law are very specific. The guarantee which we ask to see is
whether they can appeal the judgment or if they can be tried afresh.
If the answer is yes, then we will execute the EAW. Prosecutor, Cyprus.
The findings also show divergences in how Member States deal with trials
in absentia and interact in relation to them. For instance, one Spanish judge
noted that in Spain it is not possible to try in absentia crimes punishable with
sentences of more than 2years’ imprisonment, while in other Member States
it is possible. Similarly, Malta does not admit or accept trials in absentia, and
therefore an EAW could successfully be contested on the ground that the
requested person had received such a trial(
111
).
Professionals from Hungary, Slovenia and Spain all agreed that sometimes
guarantees may be requested from the issuing state to ensure that the
requested person’s right to a fair trial will be respected. For example, the
issuing state might be asked to offer an assurance that the requested person
will be able to ask for a retrial or be able to appeal. However, some interviewees
questioned the effectiveness of such assurances, noting that there is no
mechanism for following them up. For instance, one lawyer in Spain recalled
a case in which a person was surrendered to Romania and, afterwards, the
guarantee given by the issuing state was not upheld.
Interviewees from Ireland, Latvia, Slovakia and Spain referred to possible
violations of the right to a fair trial due to lack of independence of the judiciary
and the possible influence of the executive over the judiciary. Some
interviewees mentioned Poland as a country where such a risk might exist.
One prosecutor in Slovenia noted that the jurisprudence of the CJEU calls on
Member States to consider the issue of respect for procedural rights in Poland.
Other interviewees raised concerns about violations of the right to a fair trial
due to the alleged lack of independence of judges in Poland following the
reorganisation of the Polish judicial system.
Proportionality
The general position of interviewees from Belgium, Croatia, Cyprus, Finland,
Germany, Ireland, Italy, Malta, Portugal, Slovakia, Slovenia and Sweden was
that they do not make judgements on the proportionality of a request to
execute an EAW issued by another Member State. Interviewees largely
agreed that proportionality is something that should have been considered
by the issuing state.
39
I had a case where Romania requested a man who cut down some
spruce tree; the damages were 300euro. It is not for me to judge
now; it is up to them to do it. It is my task to assess if all the conditions
are there. The condition of minimum sentence has been met, and if
they consider that it is reasonable to issue an arrest warrant, then so
be it. Judge, Slovenia.
However, interviewees from Cyprus, Czechia, Estonia, Hungary and Luxembourg
agreed that, when concerns are raised about proportionality by the requested
person or their lawyer, the authorities will examine the issue. In fact, two
judges in Hungary noted that proportionality is the main factor that should
be analysed during this process. However, the overwhelming belief among
the interviewed professionals is that, while it is not impossible for the
execution of an EAW to be prevented due to proportionality concerns, it is
extremely rare.
For example, one Spanish case, a very old episode: the person was
an Estonian citizen, established his life here, obeyed the law, had a
family, a home, a job. And Spain asks [for the person to be sent] to
Spain for the crime 8years later. The judge looked for an option not
to comply with the EAW and found it to be a second-degree felony,
time-barred under our law, and decided not to surrender the requested
person. Strictly speaking, this statute of limitations is worded a little
differently. We should not look at it according to our law. If it has not
expired according to the Spanish law, then we should surrender them.
This is where the question of proportionality arises. That 7years later
it is necessary to send a person to Spain, where the conditions of
imprisonment are really difficult, normal interpreter assistance is not
provided there, as far as we know, etc. In this case, the court shifted
a bit and found a way not to surrender them. But, in fact, we don’t
have too many opportunities to assess proportionality– we have to
look at these formal conditions. Prosecutor, Estonia.
Some interviewees in Belgium, Finland, Ireland, Lithuania, Spain and Sweden
highlighted that in certain instances the executing authorities may contact
the issuing authorities to discuss the possibility of withdrawing the EAW or
using other measures if they have reasonable concerns regarding
proportionality. However, the findings show that, in general, such inquiries
are rare and are done only in exceptional circumstances.
Sometimes what [the court] has done is to write to [the issuing state]
and say, here are the circumstances, and just to confirm, you do want
this person back? Do you really want this, this is a matter going back
20years? And the answer is inevitably yes. National authority, Ireland.
It doesn’t look good on the requesting state that it withdraws it after
all this hassle and cost. And therefore the processing state would say,
‘Now it’s too late,’ for instance, ‘too messy to withdraw,’ which is
wrong. This process and feeling of embarrassment should be
discouraged. But they would never say it officially. Defence lawyer,
Malta.
40
Endnotes
(
1
) See, for example, L. Klimek, European Arrest Warrant, Springer, Cham, Switzerland, 2015; General Secretariat of the Council, Final report on
the 9th round of mutual evaluations on mutual recognition legal instruments in the field of deprivation or restriction of liberty, Brussels,
2023; European Commission, Handbook on how to issue and execute a European Arrest Warrant, Brussels, 2023; European Union Agency
for Criminal Justice Cooperation, Report on Eurojust’s casework in the field of the European Arrest Warrant, The Hague, 2021; European
Judicial Network, Judicial Library relating to Council Framework Decision 2002/584/JHA of 13June 2002 on the European Arrest Warrant
and the surrender procedures between Member States; European Criminal Bar Association, How to Defend a European Arrest Warrant
Case– ECBA handbook on the EAW for defence lawyers, London, 2017; Strengthening Trust in the European Criminal Justice Area through
Mutual Recognition and the Streamlined Application of the European Arrest Warrant (STREAM) website; Ludwig Boltzmann Institute,
‘Justice for all: Enhancing the rights of defendants and detainees with intellectual and/or psychosocial disabilities. EU cross-border
transfers, detention and alternatives’.
(
2
) Council Framework Decision 2002/584/JHA, Arts3 and 4. Mandatory non-execution grounds: (1) amnesty in the executing Member
State, (2) ne bis in idem, (3) subject beneath age of criminal liability at the time of the offence under the law of the executing Member
State. Optional non-execution grounds: (1) lack of dual criminality, (2) precedence of domestic prosecution, (3) domestic decision not to
prosecute, (4) statute of limitations, (5) ne bis in idem in non-EU countries, (6) subject is a national or resident of the executing Member
State, (7) offence is within the territorial jurisdiction of the executing Member State.
(
3
) See the CJEU judgment of 27May 2019 in C-509/18 and joined cases C-508/18 and C-82/19 PPU for the concept of ‘judicial authority’ for
the purpose of issuing the EAW.
(
4
) According to responses submitted to the European Commission, the 27 Member States issued a total of 17789 EAWs in 2021. Commission
staff working document, Statistics on the practical operation of the European Arrest Warrant – 2021, SWD(2023)262 final, Brussels, 20July
2023.
(
5
) Council Framework Decision 2002/584/JHA, Art.2(4).
(
6
) Council Framework Decision 2002/584/JHA, Art.2(2); CJEU, C-303/05, Advocaten voor de Wereld [GC], 3May 2007; CJEU, C-717/18,
Procureur-generaal v X [GC], 3March 2020.
(
7
) For more details on the (un)suitability of EAW proceedings for political offences, see J. König, P. Meichelbeck and M. Puchta, ‘The curious
case of Carles Puigdemont: The European Arrest Warrant as an inadequate means with regard to political offenses’, German Law
Journal, Vol.22, pp.256–275, 2021.
(
8
) For guidance on applying pre-trial detention as a measure of last resort, see Commission Recommendation on procedural rights
of suspects and accused persons subject to pre-trial detention and on material detention conditions, C(2022)8987 final, Brussels,
8December 2022.
(
9
) CJEU, C-241/15, Bob-Dogi, 1June 2016, para.56; CJEU, C-477/16 PPU, Ruslanas Kovalkovas, 10November 2016, para.37; CJEU, C-509/18, PF,
27May 2019, para. 45; CJEU, C-625/19 PPU, Openbaar Ministerie (Swedish Public Prosecutor’s Office), 12December 2019, para.38; CJEU,
C-648/20 PPU, Svishtov Regional Prosecutor’s Office, 10March 2021, paras42 and 45.
For more details on the dual level of protection required by the CJEU in EAW proceedings and the assessment of the proportionality of
issuing a national arrest warrant and an EAW, see A. Klip, ‘A next level model for the European Arrest Warrant’, European Journal of Crime,
Criminal Law and Criminal Justice, Vol.30, No2, pp.107–126, 2022.
(
10
) This could be a prosecutor, a judge or a court enjoying the necessary guarantees of independence.
Police services, ministries and their
central authorities and prosecutors, all of which may be– directly or indirectly– exposed to influence by the executive, are excluded. CJEU,
joined cases C-508/18 and C-82/19 PPU, OG and PI [GC], 27May 2019, paras74 and 88 and operative part (oper. part); CJEU, C-509/18, PF
[GC], 27May 2019, paras52 and 55–57 and oper. part.; CJEU, joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-
Duché de Luxembourg and de Tours, 12December 2019, paras50–58 and oper. part; CJEU, C-489/19 PPU, NJ, 9October 2019, oper. part;
CJEU, C-453/16 PPU, Halil Ibrahim Özçelik, 10November 2016, oper. part; CJEU, C-648/20 PPU, Svishtov Regional Prosecutor’s Office,
10March 2021, para.38 and oper. part; CJEU, C-452/16 PPU, Krzystof Marek Poltorak, 10November 2016, oper. part; CJEU, C-477/16 PPU,
Ruslanas Kovalkovas, 10November 2016, oper. part.
(
11
) CJEU, joined cases C-508/18 and C-82/19 PPU, OG and PI [GC], 27May 2019, para.70; CJEU, C-489/19 PPU, NJ, 9October 2019,
para.36;CJEU, joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg and de Tours, 12December
2019, paras60 and 62 and oper. part; CJEU, C-625/19 PPU, Openbaar Ministerie (Swedish Public Prosecutor’s Office), 12December 2019,
para.39 and oper. part; CJEU, C-648/20 PPU, Svishtov Regional Prosecutor’s Office, 10March 2021, paras38 and 43.
(
12
) CJEU, C-627/19 PPU, Openbaar Ministerie (Public Prosecutor, Brussels), 12December 2019, oper. part.
(
13
) CJEU, joined cases C-508/18 and C-82/19 PPU, OG and PI [GC], 27May 2019, para.70; CJEU, joined cases C-566/19 PPU and C-626/19 PPU,
Parquet général du Grand-Duché de Luxembourg and de Tours, 12December 2019, para.60; CJEU, C-489/19 PPU, NJ, 9October 2019,
para.36.
(
14
) CJEU, C-625/19 PPU, Openbaar Ministerie (Swedish Public Prosecutor’s Office), 12December 2019, para.52; CJEU, C-648/20 PPU, Svishtov
Regional Prosecutor’s Office, 10March 2021, paras56 and 57.
(
15
) CJEU, joined cases C-508/18 and C-82/19 PPU, OG and PI [GC], 27May 2019, para.71; CJEU, C-489/19 PPU, NJ, 9October 2019,
para.37;CJEU, joined cases C-566/19 PPU and C-626/19 PPU, Parquet général du Grand-Duché de Luxembourg and de Tours, 12December
2019, para.61; CJEU, C-625/19 PPU, Openbaar Ministerie (Swedish Public Prosecutor’s Office), 12December 2019, para.40; CJEU, C-168/21,
Procureur général près la cour d’appel d’Angers, 14July 2022, para.28;
CJEU, C-510/19, Openbaar Ministerie (Faux en écritures) [GC],
24November 2020, paras54 and 56 and oper. part(1).
(
16
) CJEU, C-168/21, Procureur général près la cour d’appel d’Angers, 14July 2022, para.28; see also General Secretariat of the Council, Final
report on the 9th round of mutual evaluations on mutual recognition legal instruments in the field of deprivation or restriction of
liberty, Brussels, 2023, p.14.
(
17
) General Secretariat of the Council, Final report on the 9th round of mutual evaluations on mutual recognition legal instruments in the
field of deprivation or restriction of liberty, Brussels, 2023, p.15.
(
18
) CJEU, C-168/21, Procureur général près la cour d’appel d’Angers, 14July 2022, paras26, 28 and 66.
(
19
) European Commission, Handbook on how to issue and execute a European Arrest Warrant, Brussels, 2023, p.23.
(
20
) European Commission, Handbook on how to issue and execute a European Arrest Warrant, Brussels, 2023, p.23.
(
21
) European Commission, Handbook on how to issue and execute a European Arrest Warrant, Brussels, 2023, p.24.
(
22
) European Commission, Handbook on how to issue and execute a European Arrest Warrant, Brussels, 2023, p.24 et seq.; the ‘Judicial
Library’ section of the European Judicial Network website contains further practical information on such instruments.
(
23
) Directive 2014/41/EU of the European Parliament and of the Council of 3April 2014 regarding the European Investigation Order in criminal
matters (OJ L130, 1.5.2014, p.1).
41
(
24
) Council Framework Decision 2008/909/JHA of 27November 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
European Union (OJ L327, 5.12.2008, p.27).
(
25
) Council Framework Decision 2009/829/JHA of 23October 2009 on the application, between Member States of the European Union, of the
principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L294, 11.11.2009, p.20).
(
26
) Council Framework Decision 2008/947/JHA of 27November 2008 on the application of the principle of mutual recognition to judgments
and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ L337, 16.12.2008, p.102).
(
27
) Council Framework Decision 2005/214/JHA of 24February 2005 on the application of the principle of mutual recognition to financial
penalties (OJ L76, 22.3.2005, p.16).
(
28
) This can be achieved either through the use of the Council of Europe European Convention on the Transfer of Proceedings in Criminal
Matters of 15May 1972, ETS No73, or through the opening of new criminal proceedings in the receiving Member State where the alleged
offender is found using Article21 of the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20April 1959, ETS
No30.
(
29
) For a detailed overview of relevant national authorities, see the European Judicial Network’s resources on the EAW.
(
30
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), Art.17.
(
31
) Cyprus, Law on the European Arrest Warrant and the Procedures for the Surrender of Wanted Persons between the Member States of the
European Union Law of 2004 (O περί Ευρωπαϊκού Εντάλματος Σύλληψης και των Διαδικασιών Παράδοσης Εκζητουμένων Μεταξύ των
Κρατών Μελών της Ευρωπαϊκής Ένωσης Νόμος του 2004), Art.7(1).
(
32
) Czechia, Act No105/2013 Coll., on International Judicial Cooperation in Criminal Matters (Zákon o mezinárodní justiční spolupráci ve věcech
trestních), Section193.
(
33
) Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12February 2003, §508.
(
34
) Finland, Government Bill No88/2003 (Hallituksen esitys Eduskunnalle laiksi rikoksen johdosta tapahtuvasta luovuttamisesta Suomen
ja muiden Euroopan unionin jäsenvaltioiden välillä sekä eräiksi siihen liittyviksi laeiksi/ Regeringens proposition till Riksdagen med
förslag till lag om utlämning för brott mellan Finland och de övriga medlemsstaterna i Europeiska unionen samt till vissa lagar som har
samband med den), p.52.
(
35
) Hungary, ActCLXXX of 2012 on Criminal Cooperation Conducted with the Member States of the European Union (2012. évi CLXXX. törvény
az Európai Unió tagállamaival folytatott bűnügyi együttműködésről), 8December 2012, Art.25(2).
(
36
) Ireland, European Arrest Warrant Act 2003 (Act45 of 2003), Section33(1)(b)(i)–(ii).
(
37
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.682(1) subpara.1.
(
38
) Lithuania, Minister of Justice and Prosecutor General, Order on adoption of rules for issuing a European Arrest Warrant and receiving a
person under a European Arrest Warrant (Įsakymas dėl Europos arešto orderio išdavimo ir asmens perėmimo pagal Europos arešto
orderį taisyklių patvirtinimo), No1R-195/I-114, 26August2004, with subsequent amendments, point4.
(
39
) Malta, Extradition (Designated Foreign Countries) Order, 7June 2004, Art.68(1)(b).
(
40
) Portugal, Law 65/2003 Approving the Legal Framework of the European Arrest Warrant (Lei No65/2003, que aprova o regime jurídico do
mandado de detenção europeu), 23August 2003.
(
41
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Section4(1)(a–b).
(
42
) Slovenia, Cooperation in Criminal Matters with the Member States of the European Union Act (Zakon o sodelovanju v kazenskih zadevah
z državami članicami Evropske unije), 23 May 2013.
(
43
) Spain, Law 23/2014 of 20November on Mutual Recognition of Criminal Resolutions in the European Union (Ley 23/2014, de 20 de
noviembre, de reconocimiento mutuo de resoluciones penales en la Unión Europea), Art.37a–b.
(
44
) Sweden, Ordinance (2003:1178) on Surrender to Sweden Pursuant to a European Arrest Warrant (Förordning[2003:1178]om
överlämnande till Sverige enligt en europeisk arresteringsorder), 19December 2016, Section3.
(
45
) Luxembourg, Code of Criminal Procedure (Code de procédure pénale), Art.94.
(
46
) S. Bekaert, ‘De actieve overlevering’, in X., Postal Memorialis. Lexicon strafrecht, strafvordering en bijzondere wetten, Wolters Kluwer
Belgium, Mechelen, 2021, p.104; S. Vazquez Maymir and P. de Hert, First Periodic Country Report: Belgium, STREAM project.
(
47
) S. Vazquez Maymir and P. de Hert, First Periodic Country Report: Belgium, STREAM project, p.3.
(
48
) Belgium, Law of 20July 1990 on Preventive Detention (Wet van 20 juli 1990 betreffende voorlopige hechtenis/ Loi du 20 juillet 1990
relative à la détention préventive), Art.16, para.1. Publication in the Belgian Official Gazette 14August 1990.
(
49
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), Art.3a, para.1.
(
50
) Czechia, Act No105/2013 Coll., on International Judicial Cooperation in Criminal Matters (Zákon o mezinárodní justiční spolupráci ve věcech
trestních), Section79(2)d.
(
51
) Hungary, ActCLXXX of 2012 on criminal cooperation conducted with the Member States of the European Union (2012. évi CLXXX. törvény
az Európai Unió tagállamaival folytatott bűnügyi együttműködésről), 8December 2012, Art.25(3a).
(
52
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.682(1) and (3) and Art.692(1).
(
53
) Lithuania, Code of Criminal Procedure (Baudžiamojo proceso kodeksas), NoIX-785, 14March2002, with subsequent amendments,
Art.69
1
.
(
54
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Section5(3).
(
55
) Sweden, Ordinance (2003:1178) on Surrender to Sweden Pursuant to a European Arrest Warrant (Förordning[2003:1178]om
överlämnande till Sverige enligt en europeisk arresteringsorder), 18December 2003, Section5.
(
56
) Germany, Ministerial Guidelines for Criminal Proceedings (Richtlinien für Straf- und Bussgeldverfahren), No39, §162, para.1 StPO.
(
57
) Portugal, Constitution of the Portuguese Republic (Constituição da República Portuguesa), 10April 1976.
(
58
) Slovenia, Constitution of the Republic of Slovenia (Ustava Republike Slovenije), 23December 1991, Art.2.
(
59
) Spain, Constitutional Court, STC 39/2016cr, 3March 2016.
(
60
) Belgium, Law of 20July 1990 on Preventive Detention (Wet van 20 juli 1990 betreffende voorlopige hechtenis/ Loi du 20 juillet 1990
relative à la détention préventive), Art.16, para.5. Publication in the Belgian Official Gazette 14 August 1990.
(
61
) Luxembourg, Code of Criminal Procedure (Code de procédure pénale), Art.94.
(
62
) Finland, Act on Surrender Procedures between Finland and Other Member States of the European Union (Laki rikoksen johdosta
tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä/ Lag om utlämning för brott mellan Finland
och de övriga medlemsstaterna i Europeiska unionen), Act No1286/2003, 1January 2004, Section53, subsection1.
(
63
) Malta, Extradition (Designated Foreign Countries) Order, 7June 2004, Art.62(2).
42
(
64
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), entered into force in 19December 2020, Art.24b, para.6.
(
65
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Sections4(1) and 5(2).
(
66
) Spain, Law 23/2014 of 20November on Mutual Recognition of Criminal Resolutions in the European Union (Ley 23/2014, de 20 de
noviembre, de reconocimiento mutuo de resoluciones penales en la Unión Europea), Art.24.3.
(
67
) CJEU, C-241/15, Bob-Dogi, 1June 2016, paras63, 66 and 67 and oper. part(2).
(
68
) CJEU, C-510/19, Openbaar Ministerie (Faux en écritures) [GC], 24November 2020, paras40–42, 47, 54 and 56 and oper. part(1).
(
69
) ECtHR, Guide on Article5 of the European Convention on Human Rights: Right to liberty and security, paras29 and 149.
(
70
) Council Framework Decision 2002/584/JHA, Art.11(1) and Art.13. From figures provided by 26 Member States on consent by requested
persons, it can be concluded that 49.48% of requested persons effectively surrendered in 2021 consented to their surrender (2449 out
of 4949 persons surrendered by the 26 Member States). 50.52% of requested persons effectively surrendered in 2021 did not consent
to their surrender. Commission staff working document, Statistics on the practical operation of the European Arrest Warrant – 2021,
SWD(2023)262 final, Brussels, 2023.
(
71
) Council Framework Decision 2002/584/JHA, Art. 13(1)(2).
(
72
) Council Framework Decision 2002/584/JHA, Art.13(4).
(
73
) In 2021, among the 23 Member States that provided data to the Commission, the procedure took an average of 20.14days after arrest
with the consent of the requested person. When a requested person did not consent to their surrender, the procedure lasted on average
53.72days in the 21 Member States that provided figures. Commission staff working document, Statistics on the practical operation of the
European Arrest Warrant – 2021, SWD(2023)262 final, Brussels, 2023.
(
74
) Council Framework Decision 2002/584/JHA, Art.28(1).
(
75
) Council Framework Decision 2002/584/JHA, Arts3, 4 and 4a.
(
76
) See, for example, CJEU, joined cases C-508/18 and C-82/19 PPU, OG and PI [GC], 27May 2019, para.45; CJEU, C-216/18 PPU, Minister for
Justice and Equality (Deficiencies in the system of justice)
[GC], 25July 2018, para.41; CJEU, C-270/17 PPU, Tadas Tupikas, 10August 2017,
paras49 and 50.
(
77
) In 2021, the execution of an EAW was refused in 1034 cases in all 27 Member States. Commission staff working document, Statistics on
the practical operation of the European Arrest Warrant – 2021, SWD(2023)262 final, Brussels, 2023.
(
78
) CJEU, C-128/18, Dumitru-Tudor Dorobantu [GC], 15October 2019; CJEU, C-220/18 PPU, Generalstaatsanwaltschaft (Conditions of detention
in Hungary), 25July 2018; CJEU, C-216/18 PPU, LM
[GC], 25July 2018; CJEU, joined cases C-404/15 and C-659/15 PPU, Aranyosi and
Căldăraru [GC], 5April 2016; CJEU, joined cases C-562/21 PPU and C-563/21 PPU, Openbaar Ministerie (Tribunal établi par la loi dans l’État
membre d’émission) [GC], 22February 2022; CJEU, joined cases C-354/20 PPU and C-412/20 PPU, Openbaar Ministerie (Indépendance de
l’autorité judiciaire d’émission [GC], 17December 2020; CJEU, C-216/18 PPU, Minister for Justice and Equality (Deficiencies in the System
of Justice) [GC], 25July 2018; CJEU, C-480/21, Minister for Justice and Equality (Tribunal établi par la loi dans l’État membre d’émission – II)
(Order), 12July 2022. See also the ECtHR standard on the real risk of a flagrant denial of justice in Soering v The United Kingdom, 1989,
and the EAW-relevant case Pirozzi v Belgium, 2018, para.62. For more details, see P. Bárd, Rule of Law– Sustainability and mutual trust in
a transforming Europe, Eleven International Publishing, The Hague, 2023, p.47 et seq; L. Mancano, ‘Everything must remain the same for
everything can change– Judicial subsidiarity as a way to address rule of law deficiencies in the European Arrest Warrant mechanism’,
Verfassungsblog, 2August 2022. In 2021, fundamental rights issues led to a total of 86 refusals reported by 10 of the 25 Member States
providing information. Of these refusals, 64 were registered in Germany alone. Commission staff working document, Statistics on the
practical operation of the European Arrest Warrant – 2021, SWD(2023)262 final, Brussels, 2023.
(
79
) CJEU, C-220/18 PPU, Generalstaatsanwaltschaft (Conditions of detention in Hungary), 25July 2018, paras72–76 and 117 and oper. part.
(
80
) See, for example, CJEU, joined cases C-562/21 PPU and C-563/21 PPU, Openbaar Ministerie (Tribunal établi par la loi dans l’État membre
d’émission) [GC], 22February 2022, paras52 and 81 and oper. part; CJEU, C-220/18 PPU, Generalstaatsanwaltschaft (Conditions of
detention in Hungary), 25July 2018, paras59 and 60 and oper. part; CJEU, joined cases C-404/15 and C-659/15 PPU, Aranyosi and
Căldăraru [GC], 5April 2016, para.88 and oper. part.
(
81
) CJEU, E.D.L., C-699/21, 18April 2023.
(
82
) For an overview of ECtHR case-law reviewing national measures implementing the EAW framework decision, see Guide on the case-
law of the European Convention on Human Rights– European Union law in the court’s case-law, 31August 2022, SectionE(2)(b)(i)–(v),
pp.14–17.
(
83
) CJEU, C-168/21, Procureur général près la cour d’appel d’Angers, 14July 2022, paras26, 28 and 66.
(
84
) CJEU, C-168/21, Procureur général près la cour d’appel d’Angers, 14July 2022, para.27.
(
85
) Council Framework Decision 2002/584/JHA, Art.5.
(
86
) For a detailed overview of applicable national provisions, see the Franet country studies.
(
87
) Germany, Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen IRG), §83c
IRG.
(
88
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.682(3).
(
89
) Spain, Law 23/2014 of 20November on Mutual Recognition of Criminal Resolutions in the European Union (Ley 23/2014, de 20 de
noviembre, de reconocimiento mutuo de resoluciones penales en la Unión Europea), Art.47.
(
90
) Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12February 2003, §436.
(
91
) Slovenia, Constitution of the Republic of Slovenia (Ustava Republike Slovenije), 23December 1991.
(
92
) Belgium, European Arrest Warrant Act (Wet betreffende het Europees Aanhoudingsbevel/ Loi relative au mandat d'arrêt européen),
19December 2003, Art.4, para.5. Publication in the Belgian Official Gazette 22December 2003.
(
93
) Finland, Act on Surrender Procedures between Finland and Other Member States of the European Union (Laki rikoksen johdosta
tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä/ Lag om utlämning för brott mellan Finland
och de övriga medlemsstaterna i Europeiska unionen), Act No1286/2003, 1January 2004, Section5, subsection1, para.6.
(
94
) Hungary, ActCLXXX of 2012 on Criminal Cooperation conducted with the Member States of the European Union (2012. évi CLXXX. törvény
az Európai Unió tagállamaival folytatott bűnügyi együttműködésről), 8December 2012, Art.5(f).
(
95
) Italy, Law of 22April 2005, No69, Provisions to bring national law into line with Council Framework Decision 2002/584/JHA of 13June 2002
on the European Arrest Warrant and the surrender procedures between Member States (Legge 22 aprile 2005, No69, Disposizioni per
conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d'arresto europeo e
alle procedure di consegna tra Stati membri), Art.2.
(
96
) Lithuania, Criminal Code (Baudžiamasis kodeksas), NoVIII-1968, 26September 2000, with subsequent amendments, Art.9
1
.
(
97
) Ireland, Houses of the Oireachtas, European Arrest Warrant Act (Act45 of 2003), Part3.
43
(
98
) Sweden, Ordinance (2003:1156) on Surrender from Sweden Pursuant to a European Arrest Warrant (Lag[2003:1156]om överlämnande
från Sverige enligt eneuropeisk arresteringsorder), 18 December 2003, Chapter2, Section4.2. This explicit provision was included on the
recommendation of the Council on Legislation; see Sweden, Ministry of Justice, Lag om överlämnande från Sverige enligt en europeisk
arresteringsorder, government bill, 25September 2003, p.348.
(
99
) Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), §436, 12February 2003.
(
100
) Portugal, Constitution of the Portuguese Republic (Constituição da República Portuguesa), 10April 1976, last amended by Constitutional
Law 1/2005– Seventh constitutional review (Lei Constitucional No1/2005– Sétima revisão constitucional), 12August 2005.
(
101
) Finland, Act on Surrender Procedures between Finland and Other Member States of the European Union (Laki rikoksen johdosta
tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä/ Lag om utlämning för brott mellan Finland
och de övriga medlemsstaterna i Europeiska unionen), Act No1286/2003, 1January 2004, Section5.
(
102
) Luxembourg, Act of 17March 2004 on the European Arrest Warrant and the Surrender Procedures between Member States of the
European Union (Loi du 17 mars 2004 relative au mandat d'arrêt européen et aux procédures de remise entre Etats membres de l'Union
européenne), which transposed Council Framework Decision 2002/584/JHA, Art.4 para.3.
(
103
) Malta, Extradition (Designated Foreign Countries) Order, 7 June 2004, Art.13(1).
(
104
) Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), §436, 12February 2003.
(
105
) Council Framework Decision 2009/829/JHA.
(
106
) Council Framework Decision 2008/947/JHA.
(
107
) Council Framework Decision 2008/909/JHA.
(
108
) S. Filletti, ‘The implementation of EU criminal law in the Maltese legal order’, in I. Sammut and J. Agranovska (eds), The implementation
and enforcement of European Union law in small Member States, Springer Nature, Cham, Switzerland, 2021, pp.248–249.
(
109
) For example, case-law of the ECtHR and the CJEU, United Nations resolutions, FRA reports and reports from internationally recognised
non-governmental organisations and human rights watchdogs.
(
110
) For more details regarding the right to be present at the trial and the right to a new trial, see FRA, Presumption of Innocence and Related
Rights– Professional perspective, Publications Office of the European Union, Luxembourg, 2021.
(
111
) Malta, Extradition (Designated Foreign Countries) Order, 7June 2004, Art.23(3).
45
RIGHT TO ACCESS TO A LAWYER
This chapter examines the right to access to a lawyer in EAW proceedings.
The right to access to a lawyer plays a significant role in facilitating the
fulfilment of other procedural rights, such as the right to information(
1
). It is
also recognised as a crucial right in protecting against ill treatment of persons
deprived of their liberty(
2
).
FRA findings from this and previous research(
3
) clearly demonstrate the
pivotal role of defence lawyers in safeguarding procedural rights in criminal
and EAW proceedings. The findings show that defence lawyers are the people
who inform defendants about their rights and the conduct of the proceedings
and make sure that the proceedings are conducted in accordance with the
law. In addition, in EAW proceedings lawyers explain to requested persons
what consenting to surrender implies and ensure that they are fully aware
of the consequences of waiving their rights(
4
).
A. LEGAL OVERVIEW
The right to access to a lawyer is an essential procedural right of suspected
and accused persons in criminal proceedings that is guaranteed by both
international and EU law. The Charter guarantees this right in Article48(2),
the ECHR in Article6(3)(c) and the International Covenant on Civil and Political
Rights (ICCPR) in Article14(3)(b) and (d) and paragraphs10, 32, 34, 37 and
38 of General Comment No32(
5
).
With regard specifically to EAW proceedings, according to Article11 of the
EAW framework decision, a requested person has the right to be assisted
by a legal counsel in EAW proceedings in accordance with the national law
of the executing Member State. Directive 2013/48/EU on the right of access
to a lawyer, which applies to both criminal and EAW proceedings, includes
more detailed standards on the right to access to a lawyer(
6
). Requested
persons have the right to access to a lawyer in the executing Member State,
at such a time and in such a manner as to allow them to exercise their rights
under the EAW framework decision(
7
).
The requested person has the right to meet and communicate with their
lawyer in private and to have their lawyer be present at and participate in
hearings with the judicial authorities, in accordance with the procedures set
out in national law(
8
). In addition, the rights set out in the directive in relation
to criminal proceedings and deprivation of liberty– namely confidentiality of
communications with a lawyer, the right to inform and communicate with
third persons and consular authorities, the conditions for temporarily derogating
from the right to access to a lawyer and the possibility of waiving the right–
apply also in EAW proceedings(
9
). The executing state should make necessary
arrangements to ensure that requested persons can effectively exercise their
right to access to a lawyer, including by arranging for necessary support and
providing legal aid, where applicable, in accordance with national law(
10
).
46
The requested person also has the right to access to a lawyer in the issuing
Member State (so-called dual legal representation). The role of the lawyer
in the issuing Member State is to assist the lawyer in the executing Member
State by providing them with information and advice with a view to the
effective exercise of the rights of requested persons under the EAW framework
decision(
11
). Where the requested person wishes to exercise this right and
does not already have a lawyer in the issuing Member State, the executing
Member State should promptly inform the competent authority in the issuing
Member State, which in turn, without undue delay, should provide the
requested person with information to help them in appointing a lawyer
there(
12
). The right is, however, without prejudice to the short time limits
applicable to the EAW procedure set out in the EAW framework decision (10
or 60days for the execution of the EAW, depending on whether the requested
person consents to their surrender or not)(
13
).
The executing Member State must ensure that the requested person has the
right to legal aid during the entirety of EAW proceedings. The issuing state
in turn must provide legal aid to a requested person who is subject to an
EAW for the purpose of criminal prosecution where it is necessary to ensure
effective access to justice. Both states may, however, subject legal aid to a
means test to determine whether the person has sufficient resources to pay
for legal assistance themselves(
14
). Decisions regarding legal aid and
assignment of lawyers must be made diligently, respecting the right of
defence and without undue delay. Refusals must be notified in writing(
15
).
In addition, legal aid services must be effective and of adequate quality to
safeguard the fairness of proceedings, and the requested person has the
right to have their legal aid lawyer replaced where specific circumstances
justify it(
16
). The particular needs of vulnerable persons must be taken into
account both in guaranteeing the right to access to a lawyer and in the
provision of legal aid(
17
).
National laws
The findings show that, when it comes to legal representation in the executing
state, the right to access to a lawyer is very well regulated. In all the Member
States covered by this research, relevant laws provide that the authorities
arresting a person based on an EAW should inform them about their right to
be represented by a lawyer. In addition, in the vast majority of the Member
States researched, legal representation is mandatory in the event of deprivation
of liberty. However, practices differ (e.g. in Finland a requested person can
waive the right to legal representation in the executing state(
18
).
The provision of state legal aid in the event that a requested person cannot
afford to hire a lawyer privately is equally common practice. In Finland, the
state is always responsible for paying for the legal assistance provided to
requested persons(
19
).
In all Member States, the right to access to a lawyer includes the right to
consult a lawyer confidentially and to have a lawyer present at procedural
acts.
The situation is not as straightforward when it comes to the right to legal
assistance in the issuing state.
Some Member States have legal provisions regulating access to a lawyer for
the requested person when they issue an EAW. Such a right is explicitly
provided for in Belgium(
20
), Cyprus(
21
), Czechia(
22
), Finland(
23
), Hungary(
24
),
Lithuania(
25
), Malta(
26
), Slovakia(
27
), Spain(
28
) and Sweden(
29
). Other Member
States apply general rules on access to a lawyer in domestic criminal
proceedings. The logic is that, for the state to issue an EAW, there must be
47
either criminal proceedings or execution of sentence proceedings pending.
Therefore, the requested person should benefit from all the rights that
suspects or convicted persons have, including the right to legal assistance.
However, the laws invoked in such cases do not specify that the right to legal
assistance includes assistance in cases involving the execution of an EAW
by another state and do not set out any procedure for appointing a lawyer.
Only a handful of Member States (Czechia(
30
), Finland(
31
), Italy(
32
), Latvia(
33
),
Malta(
34
), Slovenia(
35
) and Spain(
36
) explicitly specify in their laws that,
when these states execute an EAW, the requested person has to be informed
about their right to access to a lawyer in the issuing state. Then, if the
requested person wishes to benefit from legal assistance in the issuing state,
the executing authorities inform the issuing authorities and leave it up to
them to appoint a lawyer in accordance with their national laws.
B. FINDINGS: RIGHT TO ACCESS TO A LAWYER IN
PRACTICE
To safeguard the exercise of their rights, requested persons need legal
representation throughout; without a lawyer, it will be practically impossible
to have their rights safeguarded. Lawyer, Cyprus.
The findings show that the right to a lawyer in the executing state is in
general respected, with, however, some shortcomings identified when it
comes to appointment of a lawyer of the requested person’s choice and
effective representation, due to tight deadlines and the very formalised
nature of the surrender proceedings.
The right to a lawyer in the issuing state, on the other hand, seems still not
to be adequately safeguarded. The authorities provide very little assistance
or none at all to the requested person in the process of identifying, appointing
and staying in touch with a lawyer in the issuing state, and effective exercise
of this right seems to depend on the determination of requested persons
and on the personal and professional contacts of lawyers representing them
in executing states.
48
Legal assistance in the executing state
Information about the right to a lawyer
Professionals from all groups interviewed in all the Member States covered
by the research stated that the relevant authorities in the executing Member
State inform the requested person about their right to a lawyer in that state.
It seems that this information is usually conveyed first by the police and then
reiterated by prosecutors and judges.
Just over half of requested persons participating in this research (or their
lawyers participating on their behalf) knew about the right to a lawyer as a
part of their general knowledge. Out of 30 of them, 17 remembered being
explicitly informed about this right, while some (8 out of 30) did not remember
being informed. Nonetheless, all of them were able to exercise this right.
However, requested persons who did not speak the language of the executing
state reported having experienced some initial problems. A Dutch citizen
arrested in Italy based on a Greek EAW reported that he became aware that
he was entitled to appoint a private lawyer entrusted to his case only thanks
to information provided to him by other inmates in detention. At the moment
of his arrest, he did not understand the extent of the right, allegedly due to
the language barrier. This was echoed by a requested person arrested in
Cyprus.
The police did not help me; they just gave me a phone to call
[somebody] and [tell them] I was arrested. There was no interpretation
at the time; I did not understand much. No list of legal aid lawyers
was given to me, nor was legal aid explained. I did not have an
interpreter then. I was not given the chance to search on the internet
for a lawyer. I chose my lawyer myself through my friends and I was
allowed to contact him. When I mentioned the lawyer’s name, the
police contacted him– there was no problem there. I met my lawyer
outside the courtroom; no statement was taken from me at the police
station. At the first hearing, I was given 30minutes with my lawyer
to discuss the case. Requested person, Cyprus.
Appointment of a lawyer
When it comes to the appointment of a lawyer, professionals from most
Member States agreed that the common practice is that the police inform
the person that they are arrested under an EAW issued by another Member
State and that they are therefore entitled to appoint a lawyer. The police
then ask them whether they want to appoint a lawyer or whether they want
a lawyer to be appointed ex officio and ‘with this, they complete the
formalities’, as a lawyer from Spain explained. The interviewee stated that
‘they do not help to contact private lawyers’. It appears from the interviews
that the situation is similar in almost all other countries (with some exceptions,
in that requested persons might be handed a list of lawyers), and the police
do not assist requested persons in any way in finding and contacting a private
lawyer. That is why, at least at the beginning of the proceedings, the
appointment of a lawyer ex officio is very common.
I wouldn’t say they have much assistance from the authorities; they
would tell them where to find the contact information, nothing more.
The authority does its job if it appoints an ex officio lawyer, but if
someone wants to retain their own… That is a bit of a guess, but I
think that the system, the authority, does not bother with that, because
the ex officio lawyer has been provided. Lawyer, Slovenia.
As I managed to speak [by phone] with my girlfriend, my cousin, who
was aware of the case, managed to contact someone in London who
49
knew that lawyer and that lawyer went there. He was a lawyer for
the state. That’s what I didn’t know. Because we really wanted a
lawyer who wasn’t from the state; we wanted to pay and do everything
right. But we got a good lawyer. He was recommended to us by
someone who had a good experience with him. And I also had a good
experience with him. He was always very attentive, always tried
everything I asked him to do, always went after it, and that’s the
reason why I’m with him nowadays. Requested person, Portugal.
However, the interviewed requested persons who did manage to hire private
lawyers reported that these lawyers were crucial in their representation and
in some cases in the EAW not being executed.
If I had been a person who did not have the financial resources to
pay the lawyer, I would have been in prison for 4years. A person
who didn’t have the funds would do it and shut up.… Without money
you cannot have a good lawyer. A public defender would have never
got me out. Requested person, Italy.
I’m extremely lucky because I have a quite good lawyer that I knew
I could rely on when the time came. He had already known that this
could [happen]. He had already prepared a memorandum for the
prosecutor. He had already prepared to go and get me out of prison.
And still it took him two days. So, I really don’t know, for people who
don’t have the means to have legal assistance. Requested person,
Italy.
The main takeaway is that legal representation in EAW cases is in general
provided. The professionals agreed that a court hearing would never go
ahead without the requested person having a lawyer.
Nothing happens in court [in EAW proceedings] without a lawyer. If
the person is already brought to court and the lawyer is not there
yet, I do not even approach the person. I think it is correct that any
communication with the requested person takes place only when
their lawyer is present. Prosecutor, Slovenia.
Legal aid
It appears from the interviews that it is common for requested persons to
make use of a legal aid scheme (i.e. a mechanism whereby the state pays
for the legal assistance provided either by a privately hired lawyer or by a
state-appointed lawyer) in EAW proceedings in the executing state. The
procedure for the appointment of a lawyer through legal aid is always
governed by the national law of the state in question.
Some of the interviewed lawyers in Germany, Hungary and Slovenia made
the criticism that the legal aid fees for EAW proceedings are too low for
effective representation to be conducted. For example, a lawyer in Germany
would be awarded an approximate maximum of EUR400 for the whole
proceedings, which in the view of the majority of the interviewed lawyers
(four out of five) would not be sufficient for a fairly compensated legal
defence.
The state-appointed lawyer does not receive any compensation for
the client consultations or for drafting the pleadings, so in fact he is
only paid to be present at the court hearing. But what is needed for
the substantive work of the defence is not paid at all, and even if it
was, it would only be this pitiful hourly rate of 6000 forints
[approximately EUR15]. Lawyer, Hungary.
50
The lawyer is always present; in practice, I do not see problems. What
is not fair is that the fee that the ex officio lawyer receives from the
state is half of the regular lawyer’s fee. But I do not even do many
of these cases. I am on the duty list more through a combination of
certain circumstances. I see it as paying a debt to society. Lawyer,
Slovenia.
Some interviewees argued that low fees for legal aid for EAWs result in
poor-quality assistance. Furthermore, a prosecutor interviewed in Estonia
expressed some doubts regarding the quality of state-financed legal defence.
The quality of state legal aid is a separate issue altogether. Sometimes
they misunderstand and give wrong information to the client. In this
case, my role as a prosecutor in these processes is also to look at the
circumstances objectively, and if I see that there are any circumstances
preventing the [surrender] according to the law, I will immediately
point them out. My role as a prosecutor is not to shut up when the
defence is stupid. I can point out all the circumstances in the same
way and cover the shortcomings. Prosecutor, Estonia.
Role of the lawyer in the executing state
Lawyers [should not] confuse the defence to be presented [in relation
to] the European Arrest Warrant with the defence they must present
in the main proceedings. Lawyers should only focus on grounds for
refusing execution. Judge, Portugal.
It appears from the interviews that most professionals perceive the role of
a lawyer in the executing state very similarly. The lawyer should first secure
bail and make sure that the person is released from custody and then assist
the requested person by providing them with information, explaining the
person’s legal situation and the legal consequences of the EAW. They should
also explain the speciality rule and discuss whether the arrested person
should consent to their surrender or not. In addition, defence lawyers see it
as their role to get in touch with the requested person’s lawyer in the issuing
state.
A defence lawyer from Lithuania explained that, being led by the principle
of ‘doing everything in the best interests of the client’, the lawyer assesses
whether their client’s human rights will be ensured in the issuing state. The
lawyer makes sure that during the proceedings the authorities respect the
client’s rights and do not just ‘give a document and point the finger where
to sign’, that they invite an interpreter and that the person’s rights are not
treated as a mere formality. Sometimes just the presence of a defence counsel
instils discipline in law enforcement officials and in general ensures respect
for a requested person’s fundamental rights.
As a defence lawyer, I am interested in what the client wants. If he
objects to surrender, then it is a relatively technical task to fight the
surrender. There are not that many facts that I have to clarify with
my client. The most important thing is to inform them of their rights
and the course of the procedure, to get basic information about the
procedure for which the surrender is sought and what it is that the
client wants. If they do not want to be surrendered, you try to get
that result, if possible. Lawyer, Slovenia.
In addition, another lawyer highlighted the importance of creating a support
network, since requested persons tend to be alone in the executing state
when they are arrested. Therefore, it is important to visit a person in detention
and supply them with hygiene products, newspapers and other basic items,
51
as well as to contact family members or a lawyer that the requested person
knows in the issuing state.
We have to support these persons. We have to do our legal work and
we have to make sure that this person is stable within the situation
they are in. And we usually have to arrange a second contact, which
is either the family or a lawyer who knows the person from the issuing
country and knows me or is part of a network of contacts of an
associate of mine. So we always have to have a network of contacts
in case something is needed, things as basic as clothes. It has happened
that I [have] had to go and buy clothes for them to wear or give them
money. Lawyer, Portugal.
Consultations with a lawyer
It is commonly agreed that requested persons have the right to consult their
lawyers confidentially. However, the exercise of this right in practice can
sometimes be challenging.
The first consultation takes place either in the detention facility or in the
court before the hearing. The majority of professionals from all groups see
the process of consultation as rather straightforward, and most of the
interviewed lawyers had never experienced any challenges in communicating
with their clients and were never obliged to consult their clients in the
presence of someone else. It is not uncommon for the judge to pause the
hearing to allow for consultation to occur.
I have never experienced a situation in which someone told me [to
stop consulting with a requested person], even at the police or in the
detention facility or at the court. I’ve never been told, ‘That’s enough,
let’s go on.’ This has never happened to me. Defence lawyer, Czechia.
If the requested person requests, the court will adjourn the proceedings
to give the requested person the possibility to consult with their
lawyer. The lawyer is present at all stages and at all hearings.
Prosecutor, Cyprus.
However, several lawyers from Ireland and Italy mentioned delays in obtaining
consultations with persons in custody, which was a problem given the tight
EAW timelines.
EAW proceedings should be given priority… because, you know, it’s
a forcible rendition on a flight, not just a district court hearing or
whatever else. So, there’s a problem with facilitation of timely
consultations. Sometimes it can take 2 or 3weeks to get a consultation,
depending on the prison. Lawyer, Ireland.
Lawyers from Slovenia and Spain added that sometimes the time scheduled
for the consultation is too short.
The length of the lawyer–client conversation will depend on the
position of the case on the courtroom docket. If you are first, you will
have little time; if you are fourth, you will be able to go to the cells
of the court and talk longer. Lawyer, Spain.
In particular, when ex officio lawyers are on duty, they may be assigned an
EAW case while also having several other clients assigned to them, and they
may not given enough time in court to talk to the requested person before
the hearing. Sometimes they have to meet their client in a corridor in the
court to get a chance to speak to them before the hearing. The lawyer from
52
Spain highlighted that ‘one of the main problems in EAW proceedings is the
lack of time’.
Another challenge identified was a lack of special rooms in police stations
or courthouses for private consultations. A lawyer from Slovenia stated that
they had meetings with their clients in the corridor outside the courtroom,
a situation that is confirmed by a judge from Slovenia.
The first consultation usually takes place in the hallway in front of
the courtroom. The police bring him there…. It has happened before
that they have asked to have the consultation inside the courtroom,
because there is a table there, so they could have a look at the
documents in peace, and the rest of us have left the room. Judge,
Slovenia.
A requested person interviewed in Spain reported not having the opportunity
to consult with their ex officio lawyer in private before being questioned.
They were able to speak at the police station, but in the presence of the
police, and subsequently they did not see the lawyer again until they were
in the courtroom at the courthouse. The interviewee does not recall being
alone with the lawyer until they left the courtroom. They did not speak in
private, and the requested person did not ask why, as they were not aware
of having the right to a private consultation.
One of the major challenges reported by some requested persons was the
impossibility of contacting a lawyer by phone from Italian detention facilities.
This is a major shortcoming of the Italian detention system; the prison
administrations require detainees to pay for phone calls using phonecards.
Some defendants reported not having money with them, thus making it
impossible to communicate with their lawyers.
I spent two nights in prison, and I couldn’t contact my lawyer because
I couldn’t make phone calls. I had to get a card to make a phone call.
I had no idea what was going on. I didn’t know that my lawyer was
trying to get me out. But because it was on Friday, I had to wait until
Monday because the judge was not there. Requested person, Italy.
To have any contact with the outside world from prison, I needed to
have money with me so I could make a phone call or anything. I didn’t
have any money, and it was like the ongoing circle: I needed to call
to get money, I had no money so I couldn’t call. And at some point, I
got a lawyer from the Italian government. But of course, I wasn’t
happy about it. So I asked the inmates if they knew a good lawyer,
a private lawyer. And so I started that procedure. But also, my wife,
she started her procedure from her side and arranged a private lawyer
for me. So I think after a good week of detention the lawyer came
to visit me for the first time. Requested person, Italy.
Two requested persons interviewed in Finland were not given an opportunity
to consult with a lawyer in private. They met their lawyers for the first time
at their court hearings.
Such an opportunity [to consult with my lawyer in private] was not
given at any stage. When I had my court hearing… my interpreter
and lawyer were already sitting there. I was just brought to the hearing
room, and then the session began. Requested person, Finland.
A lawyer interviewed in Spain noted that, while it is now common for the
requested person and their lawyer to have a meeting prior to the hearing,
53
this was not always the case. This practice is considered a positive development
by lawyers. However, in the past it was common for the arrested individual
to go to their hearing without having spoken to their lawyer. Now, lawyers
no longer experience problems meeting with clients to explain the situation
and develop a strategy according to the circumstances of the case.
Legal assistance in the issuing state
Information about the right to a lawyer
When it comes to providing information about legal assistance in the issuing
state, the professionals’ accounts differ. Most professionals interviewed in
Belgium, Finland, Germany and Slovakia stated that requested persons
arrested in their country are informed about the right to have legal assistance
in the issuing state as well as in the executing state. Croatian, Cypriot, Czech
and Spanish professionals are divided on the issue. One lawyer from Spain
stated that, recently, requested persons have been informed of this right
more often than they were in the past, as the authorities are getting more
used to the idea. There is no mechanism, however, to safeguard the exercise
of this right.
However, professionals from Estonia, Ireland(
37
), Italy, Malta, Portugal and
Slovenia agreed that the authorities do not inform the requested persons
that they can benefit from the assistance of a lawyer in the Member State
that issued the EAW.
From what I know, [requested persons] are never informed of this. I
have to inform them of this need. This information is not in our law
and no judge has time to read the directive. Lawyer, Portugal.
Maltese authorities do not provide assistance or information about
legal aid with the appointment of a lawyer in the issuing Member
State. Prosecutors are not obliged to inform the requested person
about the right to be legally assisted in the state where the EAW was
issued. Prosecutor, Malta.
The requested persons in general (with some exceptions) do not remember
being informed about this right by the authorities; rather, their lawyers
informed them about it. Their lawyers also arranged for the appointments
of a lawyer in the issuing state.
After the process advanced, the lawyer had to contact a colleague in
Spain, to represent me in something, I can’t remember, or to consult
[on] the process there. Requested person, Portugal.
No one informed me that I had the right to have a lawyer in the issuing
state or helped me to contact one. Requested person, Spain.
Appointment of a lawyer in the issuing state
It appears that the appointment of a lawyer in the issuing state is not
straightforward and no mechanism to facilitate the exercise of this right
exists.
The Swedish example stands out as exceptional. When Sweden issues an
EAW for prosecution, the requested person usually has a lawyer appointed
to them. A prosecutor interviewed in Sweden explained that, when an EAW
is issued for prosecution, the court has to first issue a detention order in
absentia. There is always a hearing, for which the person is appointed a
public defence counsel, and this lawyer continues to represent the person
in the issuing state. However, the same prosecutor highlighted that the most
54
recent requests for a public defence counsel in cases of EAWs issued for the
execution of a sentence have been denied by the district court. The court
has denied requests for a public defence counsel because the requested
person is being returned to Sweden to serve a sentence that has already
been decided on by the courts, in a trial at which they had legal representation.
The prosecutor reported that some district courts have continued to appoint
a public defence counsel in these cases, but some have decided that this
should not be the case.
In the rest of the Member States covered, it seems that a lawyer in the
issuing state is contacted either by the lawyer in the executing state or by
family members of requested persons. If a person has no family or social
ties in the issuing state, lawyers use their contacts or search the internet to
find a lawyer in the Member State in question who specialises in EAW
proceedings.
I had a lawyer in Germany, but he was located by my Cypriot lawyer.
He was not identified by the court. No one told me that I was entitled
to help to locate a lawyer in Germany. My lawyer tried hard to locate
one. No one told me I was entitled to legal aid for the lawyer in Germany.
The lawyer in Germany was very helpful. Requested person, Cyprus.
Another interviewee reported that they had tried to hire a lawyer in the
issuing state, but the lawyer refused to represent them because there was
nothing to be done.
I didn’t have a lawyer in the country of issue. I tried to hire a lawyer
who was recommended to me. He looked at the case file and said
there was nothing he could do any more because too much time had
passed. As I already had a warrant for my arrest, he said he didn’t
want to collect my money to make appeals... that he knew would
be denied. Requested person, Portugal.
Prosecutors and judges explained that the authorities in the executing state
do not want to get involved in facilitating the appointment of a lawyer in
the issuing state because the matter concerns another jurisdiction, and they
are not sure about the rules there.
I am not sure about whether we have such a duty. The procedure
takes place in Cyprus; I don’t know what happens in the issuing
Member State. The identification and selection of a lawyer in the
issuing state is one of the duties of the lawyer in Cyprus.… If the
lawyers in Cyprus cannot help their clients locate and instruct a lawyer
in the issuing state and the person asks for a list of lawyers, then we
might be able to help. This has never happened in my experience. I
don’t know if any facilitation is offered to locate a legal aid lawyer in
the issuing Member State either. I assume that what applies to non-
legal aid lawyers also applies to legal aid lawyers. Prosecutor, Cyprus.
However, interviewees were able to point to a few examples of the
appointment of a lawyer in the issuing state facilitated by the executing
state. A prosecutor from Belgium remembered being contacted by the
executing authorities about legal assistance in Belgium for a requested
person. A prosecutor interviewed in Czechia mentioned that the Austrian
and German authorities send well-written notes informing requested persons
about appointing a lawyer in these states.
Austrians have a beautiful template for this, that’s what they send, and
I also saw this with the ones the Germans send. It is my duty to inform
55
the requested person that I am obliged to help them choose a defence
lawyer in the country where the EAW was issued. Prosecutor, Czechia.
Three lawyers interviewed in Germany declared that they regularly cooperate
with colleagues in the issuing Member State. They pointed out that no support
is provided by the authorities and that the appointment of a lawyer in the
issuing state mainly comes down to their personal efforts. A lawyer based
in Berlin with significant expertise in extradition cases all over Germany
highlighted the importance of cooperation.
Of course, with the increasing networking of the investigative authorities,
the defence also has to be increasingly linked with each other. So I
assume that many colleagues who are often active in this field have
a corresponding network and can also recommend colleagues in different
countries for the respective subject areas. Alternatively, of course, there
are things like the associations, such as the ECBA [European Criminal
Bar Association], which also provides the network of defenders, and
recommends colleagues. And I have to say that it is now quite possible
to find qualified colleagues quickly. Lawyer, Germany.
A lawyer from Hamburg provided an example of a case in which the executing
authority in the Netherlands actively asked the court in Hamburg for contact
details of lawyers in Germany to defend a German citizen in an EAW proceeding.
However, some interviewees expressed the opinion that the EU law should
be more precise. A prosecutor from Spain was of the opinion that dual
representation is not well regulated at the European level and that, if a
requested person wants to appoint a lawyer in the issuing state, the court
can do nothing; it is up to the person or their relatives to do so.
Perhaps we could think about a solution: as soon as I have news here
that the person was found in another Member State, I suggest to the
investigating judge to appoint a lawyer.… It would be possible to
provide an additional guarantee to the future defendant that there
is already someone here who is defending them. Prosecutor, Portugal.
Many interviewees suggested that having a centralised database would be
helpful. The European Criminal Bar Association does provide such a list of
defence lawyers(
38
), but one lawyer from Ireland pointed out that it would
be more helpful if the list could be vetted in some way, to ensure that the
lawyers listed had sufficient expertise and qualifications.
In this respect, one of the requested persons stressed that it is not enough
to be a good criminal lawyer to deal adequately with EAW cases: it is necessary
for the lawyer to have specific expertise in the international judicial cooperation
field.
You can’t just be a criminal lawyer. I think you have to know exactly
this field and what you’re doing. And I chose my lawyer in Italy exactly
for that purpose, because he’s quite a known person who helps people
in this kind of procedures. Requested person, Italy.
Legal aid
The vast majority of interviewees stated that it is extremely rare for requested
persons to make use of a legal aid scheme when it comes to appointing a
lawyer in the issuing state. The Irish and Swedish systems seem to be
exceptional in this respect. The Swedish system is discussed above; in short,
most requested persons have an ex officio lawyer appointed to them shortly
after Sweden issues an EAW.
56
Ireland, as an executing state, will cover the cost of expert statements from
an issuing state lawyer through legal aid. National authorities seemed to feel
that this was straightforward enough.
[Although there is no automatic right to the lawyer in the issuing
state] any lawyer who feels that they need assistance from the issuing
state simply comes to the court and says, ‘Can I have an extension
of the legal aid… scheme to cover the cost of getting a lawyer?’, and
the answer is always yes. National authority, Ireland.
Except in Ireland and Sweden, interviewed professionals did not know of
any instances of legal assistance in an issuing state during EAW proceedings
being financed through legal aid. Therefore, it seems that this option is
available only to defendants who can afford it.
Role of the lawyer in the issuing state
In all such proceedings, it is important for the lawyer [in the executing
state] to have the assistance of a lawyer from the jurisdiction
requesting surrender. In my experience, whenever I have been able
to work with someone from that country, the results have been better.
Lawyer, Slovenia.
Dual legal representation appears to be rare in general, and many interviewed
lawyers did not have any experience of it at all. There were some, however,
who did, and it had changed their way of thinking about the benefits of dual
legal representation.
At first, I was sceptical about the benefits of taking on a lawyer in
the issuing country, but experience has shown that it is very useful.
Why? Because that lawyer had the opportunity to get in touch with
the issuing authority and to agree on the course of action in the issuing
country. They practically agreed on a penalty.… Once there was a
certain degree of likelihood that their agreement would be accepted,
my client informed me that he now consents to surrender. After that,
it went rather fast. The man sat in our custody for 2months, only to
be surrendered and brought before a judge [in the issuing country],
where the prosecutor then requested that he be punished with a fine.
Lawyer, Slovenia.
The lawyer in the issuing state is the one who has access to the file that the
EAW arises from, the one who knows the procedural system and, consequently,
the one who advises the lawyer in the executing state on whether there
may have been a breach of any procedural or substantive rule and thus can
substantiate the argument in the case.
For example, there were several cases of default in which an automatic
warrant had been issued and then an EAW based on a national warrant
in cases that did not even admit pre-trial detention. This was illegal
in my understanding.… the lawyer in the issuing state can provide
the attorney in the executing state with information that may be
pertinent to the defence there. They can check the possibility of
changing the EAW, for example, bringing some evidence about the
person’s situation and getting a change, in which case either the EAW
is revoked, or replaced by a request for a questioning… it depends
on the case. Lawyer, Portugal.
Experts participating in the experts’ meeting organised by FRA referred to
promising practices involving an EAW being withdrawn as a result of the
work of a lawyer in the issuing Member State. Lawyers in issuing Member
57
States have, for example, been able to establish that an EAW was issued
against the wrong person or in a situation that should not lead to detention.
This could be accomplished only because the lawyers in the issuing states
had access to the original case files.
Interviewed lawyers also referred to expert statements obtained from
lawyers in issuing states. These would include, for example, statements on
conditions of detention. They might also cover points of law specific to the
case itself, for example whether the requested person would have been
aware that their case had been tried in absentia, and, more specifically,
whether the person was aware of the judgment rendered against them and
whether they were defended in the proceedings by an appointed lawyer. A
lawyer from Spain stated that, when acting in Spain as a lawyer in the issuing
state, their task was to communicate with the lawyer in the executing state
to find a reason to refuse surrender, whether a mandatory reason such as
res judicata or minority of age, or an optional reason such as a pending case
or lack of dual criminality.
Another lawyer highlighted that, in the relatively rare cases in which surrender
was refused, the EAW remained in place, and the requested person was
liable to be arrested again if they went to their home country or any other
EU Member State. In such cases, the role of the issuing state lawyer was key
in getting the warrant revoked.
Try and use the lawyer in their home state to get the warrant cancelled.
That’s the way to get the warrant cancelled... and it does seem to
be possible to do that. We’ve had cases where we’ve gotten warrants
withdrawn, or an agreement that if the person goes back voluntarily,
it can be dealt with.... That’s why having a lawyer in the home state
is vitally important, I think, because they can make representations.
Lawyer, Ireland.
Some interviewed requested persons had lawyers in the issuing state. A
requested person interviewed in Portugal recalled that their lawyer in the
issuing state was contacted only to gather information regarding the detention
conditions in the issuing state (in this case, Portugal) to strengthen the
argument that the interviewee should not be handed over due to their health
problems.
A judge from Portugal added that in practice it is very difficult for the lawyer
in the issuing state to act in such a case. The interviewee explained that the
deadlines for compliance with an EAW are very strict and that the requested
person may not even have any connection with the issuing state.
It is also difficult for a lawyer from the issuing state to be able to
come immediately to exercise their functions. It is much more
complicated given the very tight deadlines we have to comply with
[in EAW cases].… To my knowledge, it is not stated that they can
choose a lawyer from the [issuing] state. In fact, they may not even
have any connection with the state that issued the European Arrest
Warrant, they only committed the acts there and [then left]. Judge,
Portugal.
Some professionals interviewed in Spain expressed the view that the lawyer
in the issuing state does not provide any assistance at all. In fact, one lawyer
pointed out that it is difficult to see how assistance can be provided in practice
in view of the speed of the procedure. Given the short deadlines, it is not
easy for the lawyer in the executing state to locate a lawyer in the other
country to gather information about the case.
58
The EAW is merely a cooperation mechanism to surrender the
requested person to the issuing state. Lawyer, Spain.
The same view was echoed by some interviewees from Estonia. A prosecutor
explained that lawyers in the issuing state can be helpful only in some specific
cases, not in the majority of EAW cases.
[A] lawyer’s assistance can be provided if there are any [reasons]
why the EAW should not be executed, for example if the lawyer in
Romania could produce some documents showing that the conditions
of detention are very poor and under no circumstances should a
person be sent there. In practice, lawyers in the issuing state do not
participate in the proceedings in the executing state in any way. I do
not see a very practical need for them. The surrender procedure is a
specific procedure with very short deadlines– I do not see how a
lawyer elsewhere could help. Prosecutor, Estonia.
Consultations with a lawyer
It appears that, in cases involving dual defence, most consultations happen
between the lawyers, as the requested person is not always able to
communicate with their lawyer in the issuing state.
However, a lawyer from Lithuania recalled being contacted by a requested
person and then communicating directly with her. The interviewee was
approached by a person convicted in Lithuania, who later fled to another EU
state. The Lithuanian authorities issued an EAW to execute the remainder of
the sentence due to violation of parole. The interviewee was hired and asked
to organise everything so that the person could return to Lithuania with her
children to serve the sentence. However, it was not possible because the
only detention facility for women in Lithuania, which has a limited number
of places for women who can serve their sentences with their children, was
fully occupied. The interviewee argued that a woman with a 1-year-old child
should not be separated from her child just so that she could serve some
part of her sentence in Lithuania for a year or less. The courts gave a very
formal answer to the interviewee’s appeals, saying that the proceedings
were in accordance with the law. The rights and interests of the child were
not considered. On the advice of the interviewee, the lawyer in the executing
state started a procedure to prevent the EAW from being executed, which
was successful.
However, the interviews provided far more examples of requested persons
not being able to remain in touch with their lawyers in the issuing state. A
requested person interviewed in Italy stated that, during his detention in
Italy, he was not allowed to contact his lawyer in France. The prison
administration told him that, although his French lawyer would be allowed
to visit him in prison, they would not allow the defendant to phone a French
number because they could not be sure that he was actually contacting his
lawyer. According to the interviewee, this decision was a violation of his
rights. The French lawyer was therefore contacted directly by the defendant’s
Italian lawyers.
One thing that unfortunately has not been possible is to contact my
lawyer in France. They wouldn’t let me do that. In prison [in Turin],
they told me it wasn’t possible to call him because he’s a French
lawyer. But excuse me if I have several lawyers and I have a lawyer
in France. Why can’t I have the right to call him? They told me it was
a French number that they couldn’t be sure was really the lawyer’s
number and that they needed authorisation from the public prosecutor’s
59
office. That he could visit me in prison, though. A mess. Requested
person, Italy.
A judge and a lawyer from Estonia confirmed that communication between
the requested person and their lawyer in the issuing state is often difficult,
and the lawyer referred to a case in which their client detained in Hungary
was not allowed to communicate with them directly but had to communicate
through their Hungarian lawyer. Therefore, how well the client was represented
depended on how well the lawyers were able to exchange information.
I have had this situation... a few times– a lawyer appointed in Estonia
has contacted the lawyer of the issuing country at the request of the
client to clarify the legal situation in another country. So the person
can contact a lawyer in another country through their own lawyer in
Estonia. Judge, Estonia.
It appears from the research that communication and cooperation between
lawyers in the issuing and executing states are not facilitated by public
authorities; they primarily depend on the expertise (including the language
skills), will and personal connection of the lawyers themselves.
In some cases, this communication has proved to be crucial in effectively
assisting the defendant, as in the case of an Italian citizen arrested in France
based on an Italian EAW. As reported by one of his lawyers, cooperation with
Italian colleagues was key: they provided information on and interpretation
of the original Italian judicial case, helping the French lawyers to understand
the specific case in its cultural and political context. Moreover, they explained
to the French lawyers the origin and meaning of the particular criminal charge
in Italy (which does not exist in France), helping them to find a parallel in
the history of the French criminal system and to understand the scope of
the offence.
Most interviewed lawyers referred to tight deadlines and therefore difficulties
faced by lawyers in the issuing state. A lawyer interviewed in Cyprus recalled
a case that made it to the Supreme Court: a requested person asked the
Cypriot court for an adjournment in order for his lawyer in the issuing state
to have time to study the case file provided by the Ministry of Justice and
advise the requested person accordingly. The court rejected the request for
adjournment and the requested person appealed the decision and won(
39
).
The Court of Appeal ruled that the requested person had been deprived of
their right to a fair trial, annulled the trial court decision executing the EAW
and ordered a retrial.
The biggest problem we face for effective protection of procedural
rights and [in] particular the right to appoint a lawyer in the issuing
state is the tight deadlines foreseen in the regulations for issuing a
decision on EAW executions. In Cyprus, trial courts must issue a
decision within 35days, which is far too tight. By the time we identify
lawyers in the issuing states, by the time we instruct them, by the
time they need to contact the competent authorities and obtain the
case file, the timeline of 35days expires. The court needs at least a
week to study the submissions and issue a decision. The process is
far too long and time-consuming to be completed in 35days. Lawyer,
Cyprus.
One lawyer from Finland suggested that it would be useful to establish a
database for the exchange of documents(
40
). If this were available, documents
would no longer have to be sent between individual lawyers.
60
Dual legal
representation
The experts who participated in the experts’ meeting organised by FRA highlighted that the
right to dual legal representation is very rarely exercised in practice. This is a key issue in
relation to the procedural rights of requested persons, particularly as dual legal representation
affects the enjoyment of other rights, such as the right to information, and can be an effective
tool for the defence. The lack of dual legal representation appears to result from a number of
factors, including a lack of knowledge about the right among lawyers and judicial authorities in
executing Member States, requested persons not being informed about the right and barriers
to getting in contact with lawyers in the issuing state, for example due to a lack of contacts
with such lawyers, the tight deadlines applicable in EAW proceedings or language barriers
between lawyers. Some experts considered that the role of the lawyer in EAW proceedings is
a matter of form, reduced to explaining the formalities to the requested person, while others
noted problems relating to access to legal aid in certain Member States.
Representing requested persons– lawyers’ experiences
When asked to reflect on challenges, best practices and ways forward
regarding the legal representation of requested persons in EAW proceedings,
the interviewees from all states covered mentioned some aspects of their
work that could be improved and some that work well.
Specialisation of lawyers
One recurring theme was the question of the expertise of lawyers. The vast
majority of interviewed professionals and requested persons pointed out
that ideally lawyers representing requested persons in both executing and
issuing states should specialise in EAW proceedings and be able to speak
foreign languages. A lawyer who brought two time-intensive cases to the
Constitutional Court in Germany emphasised that these cases differ significantly
from ordinary criminal cases.
When selecting legal representation in extradition proceedings, no
consideration is given to professional expertise. As a result, colleagues
who accept such a mandate first have to familiarise themselves
with the legal matter. This is very time-consuming, since international
criminal law is not taught during the course or during the legal
clerkship. In addition, there is time-consuming research into the
respective prison conditions or procedural rights, and in foreign
languages, which represents an additional burden. Lawyer, Germany.
Moreover, lawyers who are experienced in cross-border proceedings can
generally count on a network of criminal lawyers in EU Member States, thus
facilitating the cooperation between lawyers that is crucial in EAW proceedings.
I know many colleagues who are public defenders in international
judicial cooperation who do not speak a foreign language and therefore
have no contact with their client except for a very brief contact with
the interpreter just before the hearing. And that is effectively denying
an effective defence. Lawyer, Italy.
We have a circle of lawyers who do [EAW proceedings] and, I confess,
I would rather take a lawyer whom I know to have already been
involved in some proceedings and I see that they also have some
overview compared to someone completely unknown, for whom I
have no guarantee that they will provide the legal assistance to a
requested person as it should be. When an unknown lawyer comes,
they have no idea, because in such a short time from when I reach
out to them until when the [hearing] takes place– sometimes the
[hearing] is taking place the next day– they will not have time to
study [the case]. Judge, Slovakia.
61
Lawyers in a number of countries suggest that it would be good to establish
a specialised unit/pool of lawyers with knowledge about the EAW procedure,
to guarantee the rights of requested persons more effectively.
States would do well to provide lists of lawyers with some expertise
in the EAW, not just any lawyer who wants to join. This information
should be made available to third parties, to make it easier to find a
specialised lawyer in a given country. Lawyer, Spain.
An interesting practice was reported by a defendant arrested in France based
on an Italian EAW. He reported that it is possible to search for criminal lawyers
in France– both public defenders and private lawyers– by field of expertise(
41
).
Thanks to this organisational approach, the defendant can benefit from the
very beginning of proceedings from the assistance of a public defender with
solid expertise in EAW cases.
To facilitate specialisation in EAW cases, interviewed lawyers and experts
participating in the meeting organised by FRA noted the need to provide
more training courses on the EAW so that these proceedings are taken more
seriously and not treated as a formality, as some believe they are at present.
Interviewees added that other professionals involved in EAW proceedings
would also benefit from specialisation. Interviewed lawyers from Italy referred
in this context to the EAW specialised section at the Court of Appeals of
Rome, formed of judges with specific expertise in this field who are aware
of national and international jurisprudence. This specialisation of judges
contributes to better conduct of the proceedings with greater respect for the
fundamental rights of requested persons.
However, it is worth noting that all interviewees from Ireland agreed that
the standard of legal representation provided to requested persons is
exceptionally high. This is in part because all EAWs in Ireland are processed
through the High Court, rather than the lower courts. While one professional
questioned whether this is the best use of the High Court’s time, all agreed
that it contributed to a high standard of legal representation.
Promising
practice–
Slovakia
The General Prosecutor’s office holds regular meetings and prepares a regular overview of
the most recent developments in the jurisprudence of the Supreme Court, the ECtHR and the
CJEU that are relevant for EAW cases or the implementation of international arrest warrants in
Slovakia. This enables all prosecutors dealing with the EAW to have up-to-date information and
ensures a relatively consistent approach.
Tight deadlines
Another common challenge identified by the majority of interviewees and
experts participating in the meeting organised by FRA is the very tight
deadlines in EAW proceedings. According to the EAW framework decision,
an EAW should be executed within 10 or 60days, depending on whether the
requested person consents to be surrendered or not(
42
).
I have to defend the client in a very short time. The normal deadline
for defence is... 5 to 10days. It is normal for the courts to give 10days,
but 10days is nothing. Lawyer, Portugal.
A lawyer interviewed in Spain elaborated on the lack of time for the lawyer
to review the case file in depth, prepare a strategy and talk to their client,
stating that usually everything is done in court quickly on the day of the
hearing. For this reason, the practitioner considers that the rights of the
62
individual are not fully guaranteed in the EAW procedure, because requested
persons are not allowed an adequate defence due to the lack of time lawyers
have to prepare.
A lawyer from Cyprus added that often the court timelines are so tight that
there is not sufficient time to locate and instruct a lawyer. If the requested
person is not happy with the lawyer initially instructed, they will need time
to identify and instruct a new one, who will in turn require time to study the
file. Because of the strict timelines, this is often impossible. The courts tend
to forget that preparation is needed and set hearing dates even before a
lawyer has been identified. The same sentiment was echoed by a lawyer
from Estonia.
But the pace of the proceedings is so fast that all these rights in my
opinion are superficial, not real. I have the right for my lawyer to be
present, but I have not been provided reasonable time to search for
them. Lawyer, Estonia.
There is a lack of time to participate in the proceedings, which removes
even those few options to [argue] something. It is currently built in
a way that, when there has not been a mistake in identifying the
person and the crime has been described with enough severity, then
the requested person is extradited. The defence lawyer’s participation
is rather pointless. To [look on] and shrug. Lawyer, Estonia.
Very limited role of the lawyer under the rules governing the European
Arrest Warrant
Another challenge mentioned by interviewees is the very limited role of the
defence lawyer in EAW cases.
A lawyer from Malta explained that, since the EAW is a tool for mutual
assistance between Member States and its primary scope is to simplify the
extradition process without the need to go into the merits of the case, the
role of the lawyer is very limited. It is hard to defend a person without going
into the merits of the case. A lawyer from Hungary pointed out that, since
the EAW is considered to only be a ‘formality’, lawyers do not really have a
way to ‘win’ their cases. The possibilities are very narrow: either the requested
person consents to be surrendered and is transferred to the issuing state
within 10days or they remain in Hungary for months before anything happens.
Furthermore, due to the time frame and the structure of EAW proceedings,
there is no room to examine the substance of the case, only its formal/
procedural aspects.
So the problem I had in one case was that the requested person said
that they had not committed anything…. And then I said that we
cannot take a position on this before the court. You can discuss it
there [in the issuing state]. But they felt completely innocent in this,
and I cannot go into the merits of their case. That is the rule, so I can
only plead on normal [i.e. formal] grounds, on procedural grounds
which could possibly be grounds for refusal. Lawyer, Hungary.
Echoing this, a lawyer from Sweden added that the very limited role of the
defence lawyer makes them feel helpless.
In essence, there is very little a public defence counsel can do and
that is the point. But it can be quite frustrating as a person’s legal
counsel not being able to do more. You realise that this is completely
wrong, but there is no point in [discussing] it, ... it is just to play the
game, sort of. Lawyer, Sweden.
63
A lawyer from Portugal added that, because there are very few grounds for
the non-execution of an EAW, justifying refusal requires a very careful and
thorough analysis of the EAW and collaboration with the lawyer in the issuing
state. If this is not successful, the next step is to try to find a way, also with
the collaboration of the lawyer in the issuing state, to reopen the proceedings
in the issuing state to ensure that the requested person has the opportunity
to present themselves voluntarily.
A very careful and thorough analysis of the EAW and whether we
have any way of ensuring that the EAW is not executed [is required].
To that end, once again, from my own experience, collaboration
with the issuing state lawyer is fundamental. That is the great
challenge. As a lawyer in the issuing state, the challenge is, first of
all, to find a way of being able to reopen the case by means of a
review appeal. Lawyer, Portugal.
Difficulties in communication between lawyers in the two states
Elaborating on communication between the lawyers, the interviewees stated
that it is difficult first to find a partner in the issuing state and second to
maintain communication with them within the strict time limits. In this respect,
personal and professional connections are deemed to be pivotal. A lack of
cooperation between professionals could compromise the requested person’s
ability to challenge the content of the judicial act on which the EAW is based.
The person who, for example, wants to contest the grounds on the
merits, must do so in the state that issued the arrest warrant. There
is no system to connect the defender in Italy with a defender outside
Italy. My impression is that it is still very much based on individual
ability. So, if a person appoints a lawyer in Italy who perhaps belongs
to a firm that has networks or contacts with other colleagues in the
other state, it is fine; otherwise, I have the impression that it is a
problematic situation. Judge, Italy.
A prosecutor from Estonia admitted that, in theory, it should be possible to
get in contact with one’s counterpart in a foreign country, but in practice this
does not happen very often.
Now, we are completely lacking possible legal assistance from an
issuing state– we basically do not deal with it. We do not inform the
person about this possibility, we do not organise contact opportunities,
etc. This should perhaps be improved. Prosecutor, Estonia.
Interviewed public defence counsels from Sweden, who have experience in
acting as a lawyer in the issuing state, report that they are not usually in
contact with their clients or the lawyers in the executing state and can only
make an informed guess as to the wishes of the requested person.
Many lawyers from several Member States and experts participating in the
meeting organised by FRA suggested that it would be useful always to include
the name of the lawyer assisting the requested person in the issuing country,
including any contact details, in the EAW form shared with the executing
authorities. In this way, the lawyer in the executing state could immediately
and easily get in contact with the colleague in the issuing country.
64
Promising
practice
A prosecutor interviewed in Czechia mentioned that, when Germany or Austria is the issuing
state, it sends a special template to the Czech authorities that contains information on the right
to legal counsel in the issuing country. The Czech authorities give this information, in German,
to the person.
At least in some cases when Czechia is the issuing state and the person already has a defence
lawyer in the country, the defence lawyer’s contact details are included in the EAW when it is
issued. If the person does not have a defence lawyer in Czechia, a link to the bar association’s
public search engine is included in the EAW to assist the person in choosing a lawyer from the
issuing state. The search engine (https://vyhledavac.cak.cz/) is available in English, Czech,
French and German, and it can be used to search for, among other things, a lawyer specialising
in a particular area (the EAW is not included as a category of specialisation, but criminal law is,
as is international judicial cooperation in criminal proceedings) or speaking a certain language.
Limited access to information
Interviewees and experts also pointed out that a lack of correct and complete
information in the issuing or the executing state, or both, is a challenge in
representing requested persons. For instance, the issuing state is not obliged
to share with the executing authorities all the details included in the
investigative files. A defence lawyer may therefore miss certain aspects
relevant to building an effective defence.
The question is how effective your lawyer is in protecting your
interest in terms of the EAW. If the lawyer does not have access to
certain basic information from the requesting state, it is useless
sending a lawyer that does not have all the information. Defence
lawyer, Malta.
A lawyer from Italy stated that having access to the case file would allow
the lawyer to better shape the defence strategy. He mentioned the case of
a French requested person who had received a definitive sentence from a
French court and was arrested in Italy. The interviewee did not fully
understand the functioning of the French legal and judicial system, and he
could understand the case only because the requested person had the
judicial documents concerning his case in France with him. Otherwise, the
interviewee would have had only the French definitive sentence and the
EAW form to go on.
More information would be needed, as sometimes it is an
oversimplified procedure, and there may be cases where there may
be a res judicata exception or the matter may have some open
proceedings in Spain, and with the data that is transmitted it is
sometimes difficult to identify these circumstances that could lead
to the denial of the EAW. Judge, Spain.
Lawyers also highlighted that when an arrest results from an SIS alert, even
less information is provided to them. The only thing they know at the beginning
is that the issuing state has issued an arrest warrant and that their client has
been arrested based on that warrant. No other details are available.
It is actually difficult to advise the court as to whether there are good
grounds for bail or not… if you don’t have the warrant… it’s only a
couple of days, but a couple of days in prison is a couple of days in
prison. Lawyer, Ireland.
Another issue identified by lawyers is lack of easy access to information in
general about the rules and conduct of proceedings in other Member States.
65
Several lawyers from different Member States suggested the creation of an
official database of criminal lawyers specialising in the EAW based in different
EU Member States. A lawyer from Italy added that this database could also
include all EAW-related case-law.
Another useful thing would be a European database on European
Arrest Warrant jurisprudence, both national and supranational.
Something like a big database would be very useful for all
professionals. It should be accessible, for lawyers, for judges, for
interested parties. I think this would be a very, very useful thing, as
we move more and more towards a regime of public accessibility of
judicial affairs. Lawyer, Italy.
Moreover, some of the lawyers stressed that the fact that legal and judicial
systems remain unharmonised makes cooperation in criminal matters
between EU Member States more difficult. Sometimes even accessing
information as to the nature of the alleged offence is difficult. A lawyer from
Czechia pointed out that it is challenging and time-consuming to study the
criminal codes of the issuing states to verify that the crime for which the
EAW was issued counts as a punishable crime in both the issuing and the
executing state, due to language barriers and foreign criminal codes often
not being easily accessible. The lawyer suggested that the EU could collect
the codes on a single website. The website could include either the full texts
of the national laws or at least hyperlinks to the relevant pages of the
government sites of the Member States, to make it easier for defence
lawyers to compare the criminal codes of the executing and the issuing
Member State.
Positive impact of digital tools
Some interviewed judges and prosecutors from Lithuania mentioned the
positive impact that digital tools have had in ensuring legal representation
of a requested person’s interests. The interviewees mentioned examples
such as online correspondence or offering the option of interviewing the
person remotely before issuing an EAW. In addition, digital tools have had
some positive impact on enabling access to information on the appointment
of a lawyer in the issuing state and on legal aid schemes. Moreover, online
meetings have facilitated proceedings in cases in which the requested person
resided in a town other than Vilnius (because EAWs are processed by the
Vilnius court only), making matters easier for the requested persons and
lawyers in terms of logistics (there was no need for them to travel to Vilnius
and there were no transportation costs, online meetings could be scheduled
early in the morning or at any other convenient time and it was easier to
coordinate the schedules of the lawyers).
66
In a similar vein, a prosecutor from Italy would like to see greater use of
digital tools during EAW proceedings.
The digitalisation of the file is always a useful thing: think of European
Arrest Warrants in execution of pre-trial custody measures relating
to very complex proceedings in the issuing country where there is
cooperation between the Italian lawyer and the [other] lawyer.
Let’s... take the Spanish example, with an exchange of information
that is fundamental, for example, in the judicial phase of recognition
of the sentence: the fact of having the digital file in the country
issuing the EAW is very useful in the sense that if, by chance, the
Spanish lawyer is already in possession of some of the [relevant
documents], the fact of being able to transmit them digitally to the
Italian lawyer is always a great convenience. Public prosecutor, Italy.
However, other professionals from various Member States also underlined
the challenges involved in using digital tools, such as a lack of direct contact,
which can compromise the confidentiality of client–lawyer consultations and
create misunderstandings due to disruptions in connection.
67
Endnotes
(
1
) FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and European Arrest Warrant proceedings, Publications
Office of the European Union, Luxembourg, 2019.
(
2
) Council of Europe, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report on the CPT’s Activities, Strasbourg, 13April 1992, para.36; Council of Europe, CPT, 28th General Report of the CPT,
Strasbourg, 26April 2019, para.66; Directive 2013/48/EU, recital52.
(
3
) For more details regarding the right to access to a lawyer and presumption of innocence, see FRA, Children as suspects or accused
persons in criminal proceedings – Procedural safeguards, Publications Office of the European Union, Luxembourg, 2022, Chapter 3, pp.
51–64.
(
4
) See also Council Framework Decision 2002/584/JHA, Art.13(2), Art.27(3)(f) and Art.28(2)(b).
(
5
) ICCPR, General Comment No32: Article14, Right to equality before courts and tribunals and to a fair trial, Geneva, 2007.
(
6
) For a more detailed overview of the right to access to a lawyer in general, see FRA, Rights in Practice: Access to a lawyer and procedural
rights in criminal and European Arrest Warrant proceedings, Publications Office of the European Union, Luxembourg,,2019, Section3.1.
(
7
) Directive 2013/48/EU, recital42 and Art.10(2)(a).
(
8
) Directive 2013/48/EU, recitals 43 and 44 and Art.10(2)(b) and (c).
(
9
) Directive 2013/48/EU, Art.10(3). See also Arts4, 5, 6, 7 and 9, and, where a temporary derogation under Art.5(3) is applied, Art.8. For a
more detailed overview of these general provisions, see FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and
European Arrest Warrant proceedings, Publications Office of the European Union, Luxembourg, 2019, Section3.1.
(
10
) Directive 2013/48/EU, recital45.
(
11
) Directive 2013/48/EU, Art.10(4).
(
12
) Directive 2013/48/EU, recital46 and Art.10(5).
(
13
) Directive 2013/48/EU, Art.10(6).
(
14
) Directive (EU) 2016/1919, Art.5.
(
15
) Directive (EU) 2016/1919, Art.6.
(
16
) Directive (EU) 2016/1919, Art.7(1) and (4).
(
17
) Directive 2013/48/EU, Art.13; Directive (EU) 2016/1919, Art.9.
(
18
) Finland, Government Bill No99/2016 (Hallituksen esitys eduskunnalle laiksi esitutkintalain muuttamisesta ja eräiksi siihen liittyviksi
laeiksi), p.32.
(
19
) Finland, Government Bill No88/2003 (Hallituksen esitys Eduskunnalle laiksi rikoksen johdosta tapahtuvasta luovuttamisesta Suomen
ja muiden Euroopan unionin jäsenvaltioiden välillä sekä eräiksi siihen liittyviksi laeiksi / Regeringens proposition till Riksdagen med
förslag till lag om utlämning för brott mellan Finland och de övriga medlemsstaterna i Europeiska unionen samt till vissa lagar som har
samband med den), p.37.
(
20
) Belgium, European Arrest Warrant Act (Wet betreffende het Europees Aanhoudingsbevel / Loi relative au mandat d'arrêt européen),
19December 2003, Art.10.1. Publication in the Belgian Official Gazette 22December 2003.
(
21
) Cyprus, Law on Legal Aid (O περί Νομικής Αρωγής Νόμος του 2002), Art.4A(2).
(
22
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), Art.24
(
23
) Finland, Government Bill No99/2016 (Hallituksen esitys eduskunnalle laiksi esitutkintalain muuttamisesta ja eräiksi siihen liittyviksi
laeiksi / Regeringens proposition till riksdagen med förslag till lag om ändring av förundersökningslagen och till vissa lagar som har
samband med den), p.33.
(
24
) Hungary, ActCLXXX of 2012 on Criminal Cooperation Conducted with the Member States of the European Union (2012. évi CLXXX. törvény
az Európai Unió tagállamaival folytatott bűnügyi együttműködésről), 8December 2012, Art.26(2).
(
25
) Lithuania, Minister of Justice and Prosecutor General, Order on adoption of rules for issuing a European Arrest Warrant and receiving a
person under a European Arrest Warrant, (Įsakymas dėl Europos arešto orderio išdavimo ir asmens perėmimo pagal Europos arešto
orderį taisyklių patvirtinimo), No1R-195/I-114, 26August 2004, with subsequent amendments, point24
1
.
(
26
) Malta, Criminal Code (Act NoLI of 2016), Chapter9 of the Laws of Malta, 10June 1854, Art.355AUH(6).
(
27
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Section14(3).
(
28
) Spain, Criminal Procedure Act (Real Decreto de 14 de septiembre de 1882por el que se aprueba la Ley de Enjuiciamiento Criminal),
Art.50.3.
(
29
) Sweden, Ordinance (2003:1178) on Surrender to Sweden Pursuant to a European Arrest Warrant (Förordning[2003:1178]om
överlämnande till Sverige enligt en europeisk arresteringsorder), 19December 2016, Section11a.
(
30
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), entered into force on 19December 2020 (only when the EAW is executed by
the Member State does the directive apply).
(
31
) Finland, Act on Surrender Procedures between Finland and Other Member States of the European Union (Laki rikoksen johdosta
tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä/ Lag om utlämning för brott mellan Finland
och de övriga medlemsstaterna i Europeiska unionen), Act No1286/2003, 1January2004, Art.21(b).
(
32
) Italy, Law of 22April 2005, No69, Provisions to bring national law into line with Council Framework Decision 2002/584/JHA of 13June 2002
on the European Arrest Warrant and the surrender procedures between Member States (Legge 22 aprile 2005, No69, Disposizioni per
conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d'arresto europeo e
alle procedure di consegna tra Stati membri), Art.9, para.5bis.
(
33
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.698(2), subpara.9.
(
34
) Malta, Criminal Code (Act NoXVIII of 2020), Chapter9 of the Laws of Malta, 10June 1854, Art.355AUH(4).
(
35
) Slovenia, Cooperation in Criminal Matters with the Member States of the European Union Act (Zakon o sodelovanju v kazenskih zadevah
z državami članicami Evropske unije), 23May 2013, Art.19(1).
(
36
) Spain, Act 3/2003 on the European Arrest Warrant (Ley 3/2003 de la orden de Detencion Europea), Art.10/3.
(
37
) It should be noted that there is no automatic right to a lawyer in the issuing state in Ireland, as Ireland opted out of Directive 2013/48/EU,
citing ‘substantive legal concerns’ around the admissibility of evidence and other factors. See recital58 of the directive and Minister for
Justice and Equality, Answer to Parliamentary Question265, 17September 2019.
(
38
) The Criminal Defence Lawyers in Europe database is available at the European Criminal Bar Association’s website.
68
(
39
) Cyprus, Supreme Court, Appeal Jurisdiction, Y.B.L. v Attorney General of the Republic, Ref. E.E.E.S No1/2022, 4November 2022,
ECLI:CY:AD:2022:A494.
(
40
) The e-Codex project, which has been developing decentralised platforms for safe exchange of judicial documents, already covers several
EU instruments and is continually expanding. It does not currently cover EAW proceedings.
(
41
) See ‘Annuaire des avocats de français’ on the website of the French national bar association for more details on how French lawyers are
organised and classified according to their specialisation.
(
42
) Council Framework Decision 2002/584/JHA, Art.17.
69
RIGHT TO INFORMATION IN EUROPEAN
ARREST WARRANT PROCEEDINGS
This chapter examines the legal rules on the right to information in EAW
proceedings and how this right is exercised in practice, taking into account
the views and experiences of legal professionals and requested persons
subject to EAW proceedings.
The right to information on one’s rights and the right to translation and
interpretation are the so-called enabling rights, constituting the preconditions
for exercising other rights of defence. The right to information seeks to ensure
that requested persons are effectively informed about their rights in EAW
proceedings and the options available to them and that they have a full
understanding of the consequences of their choices.
FRA has been studying the application of these rights for some time now
and the findings to date confirm the critical importance of rights awareness
and a good understanding of the conduct of the proceedings on the part of
the defendant(
1
). FRA research findings from 2019 on eight Member States
suggested that requested persons had difficulty understanding the specificities
of the EAW proceedings and the consequences of giving their consent to
being surrendered(
2
).
A. LEGAL OVERVIEW
The right to information in criminal proceedings is based on Article5(2) and
Article6(3)(a) of the ECHR, which are reflected in Articles6, 47 and 49 of
the Charter, and in Article9(2) and Article14(3)(a) and (d) of the ICCPR,
paragraphs31, 33 and 36 of General Comment No32(
3
) and paragraphs24–
30 of General Comment No35(
4
). Article5(2) of the ECHR provides that
anyone who is arrested must be informed of the reasons for the arrest, while
Article6(3)(a) specifies that anyone charged with a criminal offence must
be informed about the nature and cause of the accusation against them.
Although the ECHR does not specifically set out the right to information about
procedural rights, the ECtHR has ruled that the authorities must ensure that
the accused has sufficient knowledge of, inter alia, their right to legal assistance
and legal aid(
5
). The rights under the Charter have the same meaning and
scope as the corresponding rights under the ECHR but may also extend their
protections beyond them(
6
). It should be noted that, although EAW proceedings
do not fall under the scope of Article6 of the ECHR(
7
), the European legislator
has explicitly included these proceedings in the criminal procedural rights
framework. EU law goes beyond the ECHR requirements in the context of
the right to information of requested persons.
Information rights in European Union law
At the EU level, Directive 2012/13/EU on the right to information in criminal
proceedings establishes common minimum rules governing the right to
70
information in both criminal and EAW proceedings, building on and promoting
the general rights established in Articles47 and 48 of the Charter(
8
).
Defendants who are deprived of their liberty, which will result from the
execution of an EAW, must be provided with a written letter of rights(
9
). The
letter of rights applicable to EAW proceedings lists information on the rights
of the requested person according to the national law implementing the EAW
framework decision in the executing Member State, including the right to
legal counsel and interpretation(
10
). The letter of rights must be provided
promptly, in simple and accessible language and in a language that the
requested person understands. Models showing how a letter of rights should
be formulated in criminal and EAW proceedings are provided in Annexes1
and 2 to Directive 2012/13/EU respectively(
11
).
The requested person must also be informed of the EAW brought against
them and its content(
12
). Under the EAW framework decision, EAWs must
include information on, inter alia, the issuing authority, evidence of an
enforceable judgment, the arrest warrant or other judicial decision in the
issuing country that the EAW is based on, the nature and legal classification
of the offence, and a description of the circumstances in which the offence
was committed, including the time, place and degree of participation by the
requested person(
13
).
A requested person has the right to be informed about the possibility of
consenting to being surrendered to the issuing state, as well as the meaning
and consequences of such consent, including the fact that it entails renunciation
of the speciality rule(
14
).
Although the requirements for the information to be provided in criminal
and EAW proceedings are similar and exist in parallel, the CJEU has clarified
that Directive 2012/13/EU does not require that the requested person be
provided with the national arrest warrant forming a basis for the EAW or the
materials of the case brought against them in the issuing state during the
execution proceedings. The requested person also does not have to be
informed of their procedural rights in relation to the national arrest warrant
or how to challenge that warrant until after they are surrendered to the
issuing state. Instead, the CJEU holds that the requirement that a requested
person be provided with the EAW under Article8(1)(d) and (e) of the EAW
framework decision is sufficient to fulfil the demands of Article6 of the
Charter and Article5 of the ECHR, as the information is sufficient to allow
the requested person to understand the reasons for their arrest and to
challenge it(
15
).
The requested person therefore does not have the right to access the issuing
state’s case file on them during the EAW proceedings. However, considering
the requirements of Article6 of the Charter and Article5 of the ECHR, the
information about the circumstances forming the basis of the EAW must be
sufficiently detailed to allow the requested person to understand the reasons
for their arrest and to potentially challenge it. Similarly, for the requested
person to be able to exercise their rights effectively– including, for instance,
their right to legal assistance and interpretation and translation services, as
set out in the EAW framework decision, as well as the rights of persons
deprived of their liberty– they must be informed of these rights and of how
they can be exercised.
In conclusion, European law requires that the requested person in proceedings
relating to the execution of an EAW be provided with information about:
71
―
their rights under the national law implementing the EAW framework
decision, including their right to be assisted by a legal counsel and by an
interpreter;
―
the possibility, meaning and consequences of consenting to being
surrendered to the issuing state and of waiving the speciality rule;
― the EAW issued against them and its content, including the circumstances
forming the basis for the EAW in sufficient detail, allowing the requested
person to understand and potentially challenge the basis of their arrest;
―
their rights as a person deprived of their liberty, including the right to
challenge the deprivation of liberty, the right to urgent medical assistance,
etc., under European and national law.
The CJEU has clarified that the right to information applies in both criminal
and EAW proceedings. There are, however, important differences between
the two. In its case-law, the CJEU has stated that, while the information rights
in criminal and EAW proceedings rest on the same principles, the rights
applicable to criminal proceedings do not apply fully to EAW proceedings,
which are based on the principle of mutual recognition among EU Member
States(
16
).
National laws
Most Member States covered (Belgium(
17
), Croatia(
18
), Cyprus(
19
), Estonia(
20
),
Finland(
21
), Germany(
22
), Italy(
23
), Latvia(
24
), Lithuania(
25
), Luxembourg(
26
),
Malta(
27
) and Sweden(
28
) have relevant laws on the EAW-specific letter of
rights that must be provided to the requested person in a language that they
can understand.
In contrast, in Czechia(
29
), Hungary(
30
), Ireland(
31
), Portugal(
32
), Spain(
33
),
Slovakia(
34
) and Slovenia(
35
), the arrest of a requested person under an EAW
is carried out in the manner and with the requirements and guarantees
provided for by the respective country’s code of criminal procedure. Although
no indicative models of the letter of rights for persons arrested based on an
EAW exist, a written document must still be provided setting out the
defendant’s procedural rights; however, this document is a generic list
applicable to national criminal proceedings and not specific to EAW proceedings.
In addition, while most domestic legal frameworks require authorities to
inform requested persons of their right to a lawyer, often this does not
explicitly include the right to appoint a lawyer in the issuing state too. This
aspect is discussed in more detail in Chapter2.
B. FINDINGS: RIGHT TO INFORMATION IN PRACTICE
This section discusses the fieldwork findings on provision of information
about rights and conduct of proceedings in practice.
Overall, the main takeaway is that the police provide requested persons with
very basic information. The nuances of the EAW proceedings are explained
by defence lawyers or judicial authorities (judges/prosecutors) and not
arresting police officers. Many professionals see the central role in providing
information that the law in some Member States affords to the police as too
onerous, given the gaps in police training and the divergent and unmonitored
practices followed at different police stations.
Information about rights and reason for arrest in practice
Information about rights
In more than half of the Member States covered (Belgium, Croatia, Czechia,
Estonia, Finland, Germany, Hungary, Ireland, Italy, Latvia, Malta, Portugal and
72
Sweden), all interviewed professionals agreed that requested persons are
in practice informed of their basic rights, including the right to interpretation
and the right to legal assistance in the executing Member State.
Overall, interviewees from the majority of Member States covered by the
research reported that the first source of information is the police. Typically,
at the moment of arrest or shortly after, the police will provide general
information about the person’s rights and the reason for arrest. Where a
letter of rights exists, the police typically hand this to the requested person
immediately upon their arrest. Professionals from Czechia, Estonia, Italy and
Malta reported that in their countries the form is also available in other
languages to ensure a sufficient level of comprehension.
There is a clear form, that lists what [requested persons] should
always be informed of when they are arrested– that is to say, their
fundamental rights, their right to a lawyer ... It’s in there, and it should
always be served in connection with their arrest and [their] hearings.
Prosecutor, Sweden.
Since legal professionals and judicial authorities are not present at the time
of arrest, they can only make assumptions based on the case file regarding
what information was provided when and how. However, multiple interviews
with professionals from all groups in Cyprus, Czechia, Hungary and Slovakia
revealed that at times police officers hand out standard forms on procedural
rights in criminal proceedings instead of an EAW-specific form, without
providing any explanation. A prosecutor interviewed in Slovakia, recognising
the need to support the police in this task, had prepared a form on their own
initiative to inform the requested person about the EAW procedure and their
rights.
The professionals’ replies varied when discussing how the relevant information
is provided. Some interviewees representing all professional groups in Czechia,
Estonia, Ireland, Italy, Malta, Portugal, Slovenia, Spain and Sweden reported
that both a written information form– comparable to the letter of rights– and
oral information are provided to the requested person at the moment of
arrest.
73
On the other hand, interviewees from all professional groups in Belgium,
Cyprus, Germany, Hungary, Finland and Latvia stated that, upon arrest,
requested persons are only handed written information, and later in the
proceedings either the judicial authority or the requested person’s lawyer
will inform them about their rights orally.
Requested persons interviewed in Cyprus reported that the police handed
them a document of rights in their mother tongue or in a language they
understood. However, the police provided no oral explanation at that time.
Most interviewees confirmed that the information about rights is reiterated
and better explained later in the proceedings by lawyers and judicial
authorities.
Ensuring that all
information is
provided
Acknowledging that judges dealing with the EAW may occasionally lack the necessary
experience to inform requested persons of all relevant rights, the Munich Higher Regional Court
has developed a checklist for judges that contains the pieces of information that need to be
made known.
At the Munich Higher Regional Court, we have a form... for the judges, so that they
have a kind of roadmap of everything that needs to be done and what needs to
be announced to the requested persons, even if they have never done [an EAW
proceeding] before, which sometimes happens when the courts are on call at the
weekend. Prosecutor, Germany.
Requested persons interviewed in Italy confirmed that information about
fundamental procedural rights was generally provided at the moment of
arrest. However, in at least two cases such information was provided in a
language that the defendant could not understand. For more details on
interpretation and translation during EAW proceedings, see Chapter4.
A very negative experience was reported by a Dutch defendant arrested in
Italy based on an EAW issued by the Greek authorities. The interviewee
reported that the officers who arrested them did not explain the reasons for
the arrest: none of them could speak any language other than Italian, which
the interviewee does not speak nor understand. A similar experience was
also reported by a German defendant arrested in Italy based on an EAW
issued by the Greek authorities.
They gave me documents to sign, but they were not written in my
language. So I could not read the documents. It was probably an
explanation of my rights, I suppose, but not in German. And I only
know German. Requested person, Italy.
Information about reason for arrest
There is general agreement among all the interviewed professionals in all
the Member States covered on the importance and indeed necessity of
providing information about the reasons for arrest– that is, about the EAW
and its content.
Of course, this is one of the conditions for the legality of the procedure.
The requested persons must be informed of the content of the entire
act on the basis of which they were arrested. They must know clearly
whether the arrest is for the purpose of conducting proceedings or
executing a sentence. If it is to serve a sentence, which sentence. If
it is for the purpose of conducting [a] procedure, which procedure.
Therefore, they have to know all these details. Judge, Croatia.
74
It appears from the fieldwork in all the Member States covered that typically
general information on the content of the EAW is provided by the police upon
arrest and more detailed information, for instance on the specific charges
and the purpose of the EAW, is given later by the lawyer or the judicial
authority. At the very minimum, the police inform the requested person that
an EAW has been issued against them. Later in the proceedings, lawyers
and/or judicial authorities (judges/prosecutors) explain the content of the
arrest warrant and whether it has been issued for the purpose of prosecution
or execution of a sentence.
Interviewed requested persons in general confirmed that they had been
informed of the content of the EAW against them not by the police but by
either their lawyers or by a judge during the hearing. Some requested persons
interviewed in Cyprus and Italy complained that the arresting officer had not
explained anything to them, typically due to language problems.
The Italian police or anybody else in the police office doesn’t speak
English or doesn’t want to speak English. They didn’t want to explain
to me why I got arrested. After a little bit of [confusion] between the
officers and someone in command, I overheard a word that’s similar
to an English word. I don’t remember exactly any more, but at that
point I knew it had something to do with the case I had in Greece.
Requested person, Italy.
When I was presented in court, the police gave me a document of
rights in Polish which they asked me to sign. There was an interpreter
present in the court who merely read out the document to me and
told me there is an EAW issued against me relating to a conviction
for theft in 2005. No one explained anything else to me. Requested
person, Cyprus.
A person subject to an EAW may be arrested on the basis of an SIS alert,
without the EAW itself being available to the authorities. For instance, this
is the norm in Ireland, where most arrests are made on this basis. As the
information provided in SIS alerts is generally very brief and does not
necessarily clarify whether the warrant is for the purpose of prosecution or
execution of a sentence, the system raises some challenges as regards the
requested person’s right to information.
If it’s an SIS arrest… the Garda [police] might not have the warrant,
so all they will know is what’s in the SIS alert and oftentimes, that’s…
a very perfunctory piece of information… I saw one recently that
said ‘offence against property’ and when the warrant came through
later it was actually a much more complicated series of events relating
to fraud and theft. Lawyer, Ireland.
Several interviewees in Ireland made suggestions on how to improve the
situation in future, such as always attaching the warrant to the SIS alert or
at least including a minimum level of information, such as the purpose of
the warrant, in the alert.
Information on consent to surrender and the speciality rule
The interviewed legal professionals generally held that requested persons
are informed of the possibility and consequences of consenting to surrender–
and, where applicable, of renouncing the speciality rule– in a thorough
manner and by various actors involved in the procedure: their lawyer, the
prosecutor and the judge. This happens, however, later in the proceedings
and not upon arrest by police.
75
Even where the police attempt to explain the consequences of consent,
the communication of the information is definitely not done correctly
or in detail. To consent to surrender, the requested persons must
discuss their options with their lawyers and not with the police officers.
Lawyer, Cyprus.
These findings were also confirmed by interviewed requested persons in
Cyprus, Finland, Italy, Lithuania and Spain, who confirmed that consent to
surrender and the speciality rule are not only the most technical aspect of
information provision, but also that, when such information has been provided
by the police, it is often too generic and always needs further clarification.
All interviewees confirmed that they had been not informed by the police
but by several other actors, including judges, but mainly lawyers.
Nothing was explained to me either at the point of my arrest or at
any other point. No one informed me about my right to be tried only
for the offence mentioned in the arrest warrant, except for my lawyer.
Requested person, Cyprus.
I was told about the possibility to waive the principle of speciality
and the consequences of doing so by my lawyer. Requested person,
Spain.
Interviewed lawyers emphasised that consent to surrender may result in the
automatic renunciation of the application of the speciality rule and that
therefore it should be properly explained, and the consequences carefully
considered. Typically, the arresting officers lack the required information and
competences to provide sufficient explanation.
In addition, some lawyers from Cyprus, Estonia and Italy suggest that, at
times, judicial authorities treat the EAW proceedings as a mere formality and
do not even consider it necessary to inform requested persons properly
about their right to consent to their surrender or not and the consequences
of their decision. This information is consistent with findings from interviews
with requested persons in Spain, who claimed that they had been informed
by the judicial authorities only that if they consented to their surrender they
would be handed over, with no further explanation. Then the judicial authorities
would ask the defendant whether or not they waived the principle of speciality.
The level of communication with the requested person is totally
inadequate, because the idea is that the judge can’t wait to get rid
of this package. For example, you are on holiday at Lake Garda, you
are arrested at four o’clock in the morning because your name appears
in the SISII database, and in the meantime you are put in prison,
where no one understands you, where you are unable to ask how to
take a shower because no one speaks English. You are brought in
your stinking shirt from two days before in front of a judge, who is
in a beastly hurry, who does not speak English. The interpreter is
often another prisoner or, at best, a guy who has been a pizza maker
in Germany, France or England. The interview is conducted in a very
bureaucratic manner. And legitimate questions– like ‘What happened
to me?’, ‘What can I do?’, ‘How can I contact my family?’– are simply
seen as a nuisance. Lawyer, Italy.
A lawyer from Estonia added that judges and prosecutors sometimes push
the requested person to consent to their surrender, explaining that there is
nothing the executing authority can do and that it is in their own interest to
consent, be transported to the issuing state and, only once there, pursue
their legal defence.
76
The message to both me and the requested person is that the
extradition will happen regardless and the sooner you go there the
sooner you can start discussing the particulars of the case. They are
advised and nudged to take that option.… The message is that we
do not deal with the content of the case– we only extradite and that
is all. It is an exceptionally formal procedure. Lawyer, Estonia.
Promising
practice– how to
explain consent
to surrender and
the speciality
rule
Sweden
Swedish prosecutors reported that a specific consent form created by the Swedish Prosecution
Authority is used during the consent hearing, at which a police officer, a public defender and
an interpreter are present. If the requested person would like to consent to their surrender, a
prosecutor is also present.
There is a specific consent form that the [prosecution] authority has created. This is
then gone through by the police officer and the public defence counsel and maybe also
if there is an interpreter present [by them]. And then if there is a will of the requested
person to consent to surrender... a prosecutor is also present, either via video link or by
telephone, and goes through [the consent form] even more carefully before the form is
signed by the requested person, and [the prosecutor] explains what it means to actually
consent to surrender. Prosecutor, Sweden.
France
The lawyer of a requested person arrested in France based on an Italian EAW reported on how
well the French prosecutor had informed them about the functioning of consent to surrender
and the speciality rule in EAW cases. The prosecutor used specific visual information materials
to help the defendant understand these technical aspects of the procedure.
The information is very detailed. There are four, five, six slides explaining it very clearly.
I’m sure that my client was able to understand OK. He had a lawyer, and he also had the
interpreter in Italian. Defence lawyer on behalf of a requested person, Italy.
Understanding the information
When it comes to the understanding of the information provided, legal
professionals generally consider that most requested persons understand
their rights. There are, however, some exceptions in this regard, for instance
in Estonia, where all interviewees held that there is room for improvement
to ensure that the language used is accessible and that requested persons
do not sign documents stating that they have understood the information
provided when in reality they have not. In some other states, such as Germany
and Italy, clear difference emerged in the responses of interviewed lawyers
and judicial authorities. Whereas the latter tend to assume that requested
persons understand their rights without too much difficulty, lawyers disagree.
My spontaneous answer would be that it is asked formally, ‘Did you
understand that?’ and a client who is usually quite overwhelmed in
that situation will say, ‘Yes, yes.’ Daring to say to a judge in a foreign
country, ‘No, I don’t understand what you’re saying,’ requires [a]
certain courage and a certain level of reflection that I don’t think
everyone in the situation has. Lawyer, Germany.
77
Interviewees also highlighted that the procedure for provision of information
is itself not ‘user-friendly’. They described it as ‘a formalistic procedure’
involving the handing over to the requested person of a document specifying
their rights, which may appear satisfactory as regards the letter of the law,
but not the spirit of the law. The information may be incomprehensible
because it is in a language that the person does not understand, or it may
be difficult for them to understand it because they are in a state of shock.
This was confirmed by interviews with requested persons or their defence
lawyers in Cyprus, Italy and Spain, which highlighted that documents specifying
the rights of requested persons tend to be rather long and in complex legal
language that is not readily understood by requested persons, especially
when they are in a state of shock.
Inside the holding cell of the court building, the police handed [my
client] for the first time the document of rights in Greek and in Slovak.
It was a lengthy document of about 10pages in legal language, which
is impossible for a non-lawyer to understand, especially for a person
who was taken to court without explanation. Defence lawyer on
behalf of a requested person, Cyprus.
The letter of rights can be made shorter and more concise, to be
better understood. The long list of rights may not be so helpful and
easily understood by a person upon arrest, given the confusion that
is natural for a person under those circumstances. Some issues must
be explained orally upon request. In the case of the speciality rule,
we often remind the court to explain it well and we explain it to the
requested person ourselves in advance if the person appears without
a lawyer, as we believe it is highly crucial that we do not surrender
anyone for the purpose of being tried for offences other than those
mentioned in the EAW. Prosecutor, Cyprus.
Judicial authorities interviewed in Croatia, Czechia, Ireland and Sweden
emphasised that they give special attention to ensuring that the requested
person understands the scope of their rights and the information given.
I will not proceed any further until I am convinced that the parties
have indeed understood their rights. Judge, Croatia.
78
However, when it comes to assessing whether requested persons understand
the speciality rule, professionals interviewed across all the Member States
have some doubts. Interviewees highlighted that requested persons may
struggle to fully understand the consequences of consenting to their surrender,
and especially of waiving the speciality rule, due to the complexity of the
law. Most professionals see it as the lawyer’s task to explain the situation
properly. Requested persons also emphasised the crucial role of lawyers.
Interviewees in Cyprus, Italy, Lithuania, Portugal and Spain stated that their
lawyers had clarified certain aspects of the EAW procedure and requested
persons’ rights and that they could not have achieved a sufficient level of
comprehension of their situation without the support of their lawyers.
[The speciality rule] must be explained to them. This is my work as
the defence lawyer. I try to explain to them what the [rule] means, I
try to explain the risks involved [in] being prosecuted for all crimes
[not just the one for which the EAW was issued]. Lawyer, Czechia.
Two lawyers interviewed in Hungary considered that, due to the pace of
EAW proceedings, there is not enough time for the lawyer to make sure that
the requested person understands everything. They argued that the time
pressure in EAW cases means that understanding depends less on the linguistic
skills of the requested persons and more on their ability to cope mentally
with the situation. Judicial authorities interviewed in Hungary, however,
highlighted the educational, cultural, economic and social background and
the cognitive skills of requested persons, as well as cultural differences, as
potential challenges to ensuring full understanding. As one way of ensuring
consistent practice and that all parties involved have sufficient experience,
the interviewees from Hungary referred to the specialisation of lawyers and
judicial authorities working on EAW cases, which are dealt with exclusively
in the Budapest-Capital Regional Court.
There is, however, usually no systematic method of verifying that requested
persons fully understand the information provided to them and the
consequences of their choices.
I don’t want to blame the state prosecution or the courts, but the
truth is that from their point of view their [role] is rather static. They
basically need to make sure, to put it bluntly, that it is recorded in the
minutes that the [requested person] understands [what consent to
surrender means]. But they are not very concerned about the extent
to which the person truly understands this issue.… They do not verify
it in any way. Another question is how they could actually do that.
Because, if the requested person tells you that they understand, of
course you’re going to be content. Obviously, if the requested person
shows any signs of mental illness, then [the authorities] would dig a
little deeper, but let’s just say openly that most requested persons
do not have the intellectual capacity to understand such a subtle thing
as the speciality rule. Lawyer, Czechia.
Another issue often cited when discussing requested persons’ understanding
of information is the effectiveness of interpretation and translation, which
will be discussed in Chapter4.
79
Endnotes
(
1
) FRA, Children as suspects or accused persons in criminal proceedings– Procedural safeguards, Publications Office of the European
Union, Luxembourg, 2022; FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and European Arrest Warrant
proceedings, Publications Office of the European Union, Luxembourg, 2019; FRA, Rights of suspected and accused persons across the EU:
Translation, interpretation and information, Publications Office of the European Union, Luxembourg, 2016.
(
2
) FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and European Arrest Warrant proceedings, Publications
Office of the European Union, Luxembourg, 2019, pp.60–62.
(
3
) ICCPR, General Comment No32: Article14, Right to equality before courts and tribunals and to a fair trial, Geneva, 2007.
(
4
) ICCPR, General Comment No35: Article 9, Liberty and security of person, Geneva, 2007.
(
5
) ECtHR, Padalov v Bulgaria, No54784/00, 10November 2006, para.54; ECtHR, Aleksandr Zaichenko v Russia, No39660/02, 18February
2010, para.38; ECtHR, Panovits v Cyprus, No4268/04, 11December 2008, paras65, 72 and 74; ECtHR, Brusco v France, No1466/07,
14October 2010, para.54; ECtHR, Stojkovic v France and Belgium, No25030/08, 27October 2011, para.54.
(
6
) Charter of Fundamental Rights of the European Union, Art.52(3).
(
7
) ECtHR, Monedero Angora v Spain (dec.), No41138/05, 7October 2008, para.2.
(
8
) Directive 2012/13/EU, recital39 and Art.1; CJEU, C-612/15, Nikolay Kolev and Others, 5 June 2018, para. 88.
(
9
) Directive 2012/13/EU, Art.4.
(
10
) Directive 2012/13/EU, recital39 and Art.5(1); Council Framework Decision 2002/584/JHA, Art.11(2).
(
11
) Directive 2012/13/EU, Art.4 and Art.5(2).
(
12
) Council Framework Decision 2002/584/JHA, Art.11.
(
13
) Council Framework Decision 2002/584/JHA, Art.8(1).
(
14
) Council Framework Decision 2002/584/JHA, Art.11.
(
15
) CJEU, C-105/21, IR, 30June 2022; CJEU, C-649/19, IR, 28January 2021.
(
16
) CJEU, C-649/19, IR, 28January 2021; CJEU, C-105/21, IR, 30June 2022.
(
17
) Belgium, European Arrest Warrant Act (Wet betreffende het Europees Aanhoudingsbevel/ Loi relative au mandat d'arrêt européen),
19December 2003, Art.10.1. Publication in the Belgian Official Gazette 22December 2003.
(
18
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), Art.24, para.3.
(
19
) Cyprus, Law on the European Arrest Warrant and the Procedures for Surrender of Wanted Persons between Member States of the
European Union of 2004 (Ο περί Ευρωπαϊκού Εντάλματος Σύλληψης και των Διαδικασιών Παράδοσης Εκζητουμένων Μεταξύ των
Κρατών Μελών της Ευρωπαϊκής Ένωσης Νόμος του 2004), N.133(I)/2004, Art.17(1A).
(
20
) Estonia, Minister of Justice, Establishment of Form of Declaration of Rights (Õiguste deklaratsiooni näidisvormi kehtestamine), Annex2,
14July 2014.
(
21
) Finland, Act on Surrender Procedures between Finland and Other Member States of the European Union (Laki rikoksen johdosta
tapahtuvasta luovuttamisesta Suomen ja muiden Euroopan unionin jäsenvaltioiden välillä/ Lag om utlämning för brott mellan Finland
och de övriga medlemsstaterna i Europeiska unionen), Act No1286/2003, 1January2004.
(
22
) L. Meyer-Goßner and B. Schmitt, B., Code of Criminal Procedure (Strafprozessordnung), 65th edition, C.H.Beck, Munich, 2022, §114b,
para.1.
(
23
) Italy, Law of 22April 2005, No69, Provisions to bring national law into line with Council Framework Decision 2002/584/JHA of 13June 2002
on the European Arrest Warrant and the surrender procedures between Member States (Legge 22 aprile 2005, No69, Disposizioni per
conformare il diritto interno alla decisione quadro 2002/584/GAI del Consiglio, del 13 giugno 2002, relativa al mandato d'arresto europeo e
alle procedure di consegna tra Stati membri”), Art.12.
(
24
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.715(1).
(
25
) Lithuania, Prosecutor General of the Republic of Lithuania, Order on approval of forms for documents in criminal proceedings (Įsakymas
dėl baudžiamojo proceso dokumentų formų patvirtinimo), 28February 2017, NoI-55.
(
26
) Luxembourg, Act of 17March 2004 (Loi du 17 mars 2004 relative au mandat d'arrêt européen et aux procédures de remise entre Etats
membres de l'Union européenne), Art.7.
(
27
) Malta, Criminal Code, Chapter9 of the Laws of Malta, 10June 1854, ScheduleE, PartII.
(
28
) Sweden, Swedish Prosecution Authority, Legal Guidance (Misstänktas rätt till insyn vid frihetsberövande m.m.), 2014:1, November 2019,
Annex2; Sweden, Swedish Prosecution Authority, Legal Guidance: Surrender according to a European Arrest Warrant (Rättslig vägledning,
Överlämnande enligt en europeisk arresteringsorder), 2021:16, November 2021, Annex13.
(
29
) Czechia, Act No141/1961 Coll., Code of Criminal Procedure (Zákon o trestním řízení soudním), Section33(6).
(
30
) Hungary, ActCCXL of 2013 on the Enforcement of Penalties, Measures, Certain Coercive Measures and Misdemeanour Custody (2013. évi
CCXL törvény a büntetések, az intézkedések, egyes kényszerintézkedések és a szabálysértési elzárás végrehajtásáról), 1January 2015,
Art.12(4).
(
31
) Ireland, S.I. No119/1987, Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987.
(
32
) Portugal, Decree-Law 78/87 Approving the Code of Criminal Procedure (Decreto-Lei No78/87, aprova o Código de Processo Penal),
17February 1987.
(
33
) Spain, Organic Law 5/2015 (Ley Orgánica 5/2015, de 27 de abril, por la que se modifican la Ley de Enjuiciamiento Criminal y la Ley
Orgánica 6/1985, de 1 de julio, del Poder Judicial, para transponer la Directiva 2010/64/UE, de 20 de octubre de 2010, relativa al derecho
a interpretación y a traducción en los procesos penales y la Directiva 2012/13/UE, de 22 de mayo de 2012, relativa al derecho a la
información en los procesos penales).
(
34
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Section14.
(
35
) Slovenia, Cooperation in Criminal Matters with the Member States of the European Union Act (Zakon o sodelovanju v kazenskih zadevah
z državami članicami Evropske unije), 23May 2013.
81
RIGHT TO INTERPRETATION AND
TRANSLATION
This chapter discusses the legal framework, and the views of legal professionals
and requested persons with experience in EAW proceedings, relating to the
application of the right to interpretation and translation in such proceedings.
Like the right to information (discussed in Chapter3), the right to interpretation
and translation is a precondition for exercising other rights of defence
effectively. FRA findings from two research projects concluded in 2016 and
2019 suggested that not all EU Member States had measures in place to
ensure the quality of legal interpretation and translation (e.g. not all Member
States had established requirements for interpreters and translators to have
a specific level of education or experience, or an official qualification), and
quality remained questionable with respect to less commonly spoken
languages (both EU and non-EU)(
1
).
A. LEGAL OVERVIEW
The right to interpretation and translation, in criminal proceedings and EAW
proceedings, aims to ensure that defendants, including requested persons,
who do not speak or understand the language of the proceedings are provided
with interpretation during the proceedings and with translations of essential
documents. This is to enable them to efficiently exercise their rights of
defence and to safeguard the fairness of proceedings.
82
The right to interpretation is based on Articles5(2) and 6(3)(e) of the ECHR,
which introduced the rules that everyone deprived of their liberty should be
informed in a language they understand about the reasons for their arrest
and that everyone charged with a criminal offence has the right to free
assistance from an interpreter if they cannot understand or speak the language
used in court. This right is reflected in Articles47 and 48(2) of the Charter,
providing for the right to an effective remedy and fair trial and for the right
of defence respectively, and in Article14(3)(f) of the ICCPR and paragraphs33
and 40 of General Comment No32(
2
). The guarantees set out in Article5 of
the ECHR apply to all instances of arrest, including under an EAW. The
guarantees set out in Article6, on the other hand, are not applicable to
extradition and EAW proceedings directly through the ECHR(
3
); however,
they are applicable to EAW proceedings through EU secondary law, as EU
law goes beyond the minimum ECHR standards and explicitly extends fair
trial guarantees to EAW proceedings.
In secondary EU law, the right to be assisted by an interpreter is included in
Article11(2) of the EAW framework decision(
4
) and further specified in
Directive 2010/64/EU on the right to interpretation and translation in criminal
proceedings(
5
).
The relationship between these two legal instruments is clarified in recital15
of Directive 2010/64/EU, which stipulates that the rights provided for in the
directive should also apply, as necessary accompanying measures, to the
execution of an EAW. Executing Member States should bear the costs of
interpretation and translation into the language spoken and understood by
the requested person to enable them to fully exercise their right of defence,
and to safeguard the fairness of the proceedings. Accordingly, the requested
person should be provided with interpretation of adequate quality, and they
should be able to challenge the non-appointment of an interpreter or complain
about the quality of the interpretation provided.
In relation to the right to translation in EAW proceedings, requested persons
should receive from the executing authorities a translation of the EAW, or,
exceptionally, on condition that it does not prejudice the fairness of the
proceedings, an oral translation or a summary translation might be provided(
6
).
In addition, that translation should be of a quality sufficient to safeguard the
fairness of the proceedings(
7
).
According to the case-law of the CJEU, Member States ‘must take concrete
measures to ensure that the quality of the interpretation and translations
provided is sufficient to enable the suspect or accused person to understand
the accusation against them’(
8
). The CJEU decided this matter with reference
to the landmark judgment by the ECtHR in the case of Hermi v Italy(
9
).
While the CJEU has clarified the notion of ‘essential documents’ in criminal
proceedings on several occasions(
10
), it has yet to do so in the context of
EAW proceedings.
National laws
All the Member States covered by this research guarantee in their national
laws the right to interpretation and translation in criminal and EAW proceedings.
The right to interpretation and translation in EAW proceedings is derived
either from general laws covering the entire criminal proceedings– such as
a code of criminal procedure– or from laws adopted to transpose Directive
2010/64/EU (Belgium(
11
), Croatia(
12
), Cyprus(
13
), Czechia(
14
), Estonia(
15
),
Finland(
16
), Germany(
17
), Hungary(
18
), Ireland(
19
), Italy(
20
), Latvia(
21
),
Lithuania(
22
), Luxembourg(
23
), Malta(
24
), Portugal(
25
), Slovenia(
26
),
Slovakia(
27
), Spain(
28
) and Sweden(
29
). Croatia(
30
) has adopted a law
83
regulating cooperation with EU Member States on criminal matters, covering
EAW proceedings and access to interpretation and translation.
The national laws of several Member States, such as Lithuania(
31
),
Luxembourg(
32
) and Spain(
33
), specifically refer to the use of digital tools
and technology for interpretation during proceedings. In contrast, national
laws in other Member States, such as Czechia, Malta and Slovenia, do not
specifically refer to the use of digital tools when providing interpretation(
34
).
In some Member States, such as Germany(
35
), Latvia(
36
), Malta(
37
), Slovenia(
38
)
and Sweden(
39
), legal measures are in place to help ensure the quality of
interpretation. For instance, in Germany, as of 2023, the new Court Interpreters
Act (Gerichtsdolmetschergesetz) sets forth a new regulatory framework at
the federal level that requires interpreters to pass a state-recognised
interpretation examination. Similarly, in Slovenia interpreters must satisfy
legally prescribed conditions relating to their education, work experience
and legal knowledge(
40
). In Belgium, sworn interpreters must also demonstrate
their legal knowledge by providing a certificate(
41
). Malta’s Criminal Code
requires that the list of interpreters (and translators) provided to legal counsel
and the relevant authorities includes professionals who are ‘appropriately
qualified’(
42
).
B. FINDINGS: INTERPRETATION AND TRANSLATION IN
NATIONAL LAWS AND PRACTICE
Provision of interpretation in practice
In all Member States, interviewed professionals agreed that, when a requested
person cannot understand the language of the proceedings, they are in
practice provided with interpretation. However, the stage at which
interpretation is provided varies. The findings show that interpretation is
provided in most Member States from the moment of detention at the police
station. The need for interpretation is, then, initially assessed by the police.
According to some lawyers interviewed in Italy, however, police officers and
the judiciary tend to carry out only a basic rough assessment of a person’s
need for interpretation.
Professionals from Luxembourg and Slovenia stated that there is no need
for an assessment of whether a person requires interpretation and translation,
as an interpreter is always appointed whenever a person does not speak
the language of the proceedings.
There is no need [for a special assessment] because we stick strictly
to this [always appointing an interpreter]. There have been some
Supreme Court decisions regarding interpretation, so nobody is playing
with this. Judge, Slovenia.
Interviewees from Croatia, Czechia, Latvia, Portugal, Slovenia and Spain
explained that interpretation is also provided in cases in which the requested
person can speak a similar language or has some knowledge of the language
in which the proceedings are taking place, to reduce procedural mistakes.
I admit that, even if other authorities involved tell me that the arrested
person understands Czech both in speech and writing, I still request
an interpreter to be present for the court proceeding. In the worst
case, I send the interpreter home if I can see that the requested person
speaks perfectly fluent Czech. Judge, Czechia.
84
Nobody asked if I needed interpretation, but [it] was automatically
provided. Requested person, Spain.
However, there are also accounts of interpretation being provided not from
the moment of detention but later in the proceedings. A lawyer from Cyprus
argued that this practice should change, as the hours immediately after
apprehension are usually the most critical in terms of respect for fundamental
rights and the most difficult for the requested person. It appears from the
interviews in several Member States that interpretation is often provided at
a later stage, after the initial detention– for example, for meetings with the
judicial authorities or consultations with lawyers.
Yes, I did need interpretation, but this was only provided inside the
courtroom. Nothing was interpreted for me whilst I was in prison, at
the time when I was told that I had to appear before the court. In the
court there was a Cypriot interpreter for Polish; however, he did not
speak Polish well and I did not understand much of what he was
saying… I told the judge I did not understand everything from the
interpretation and the judge adjourned the proceedings for another
date, for me to appear in court with my lawyer. I am not aware whether
there will be another Polish interpreter in court on that date or whether
I will rely on my lawyer to explain to me. Requested person, Cyprus.
In addition, a requested person interviewed in Italy highlighted major issues
with the availability of interpretation during detention, when they needed
to discuss pressing medical needs.
At the prison, I had asked for someone who would speak my language,
because I am chronically ill. And the doctors and nurses, they all did
not know German or English to the extent that they could communicate
about medical technicalities. One doctor knew a little English, and I
could communicate with her when she was there. And, of the staff,
only one guard knew German.… And because I could not communicate,
they sent me other prisoners who were multilingual to help translate.
But that is no reliable help either, if another prisoner tells me what
the police officer or the nurse wants from me. Of course, that is not
reliable.… and my health was bad. Requested person, Italy.
Interviewees also identified other challenges, such as the quality of
interpretation and lack of availability of interpreters, especially for less widely
spoken languages.
Quality of interpretation
One of the most pressing issues, raised by interviewees from most of the
Member States covered, is the quality of the interpretation provided during
EAW proceedings. Professionals from all groups pointed out that several
Member States (e.g. Czechia, Ireland, Italy and Portugal) have no rules,
guidelines or monitoring mechanisms available for assessing the quality of
interpretation.
One of the interviewed lawyers from Italy regarded the poor quality of
interpretation as one of the most critical issues in EAW proceedings, something
that could ultimately compromise the procedural rights of the requested
person. Moreover, in Italy other detainees or individuals who possess a
general knowledge of the language are sometimes used as the interpreters,
but, understandably, they often cannot explain technical legal terms and
concepts.
85
Also keep in mind that language assistance is a problem that threatens
to blow up this entire system. I hope that eventually Italy will really
end up under infringement proceedings, because we have never
seriously implemented Directive 2010/64/EU, which is [an enabling
right]. If the judge doesn’t take the time to explain, if the interpreter
is not qualified... if the interpreter doesn’t know what the principle
of speciality is, how can they translate it to the person? Lawyer, Italy.
A lawyer from Ireland echoed these concerns, adding that there should be
some regulations in place.
Training [of interpreters] is a massive issue… It would almost take
legally qualified people to act as interpreters, and we don’t live in
that kind of utopia… Some kind of a legal criminology training, I think,
would be very helpful. But... the quality of training and the levels of
qualifications and experience required in Ireland seem to be quite
low. Lawyer, Ireland.
Promising
practice
In Hungary, when executing an EAW, all the professionals involved– including state-appointed
interpreters– are members of a specialised EAW team at the Budapest-Capital Regional Court
(Budapesti Törvényszék). This means that the judges usually work with the same interpreters,
who know the EAW process well. This ensures the quality of the interpretation services
provided. All the judges interviewed in Hungary underlined the importance of working with
specialised professionals, which improves the effectiveness and quality of EAW procedures.
A lawyer from Croatia, however, points to some seemingly positive effects
of interpretation being provided by people lacking formal training or the
status of legal interpreters. ‘The authorities are inviting native speakers
regardless of their education’ (e.g. salespeople from the nearby shops); while
these people may not possess the necessary qualifications, the lawyer
argued, this practice ensures that requested persons receive interpretation
quickly, allowing the procedure to progress more quickly and easily.
While some interviewees from Croatia and Ireland noted that interpreters
who do not have any qualifications may be used in proceedings, in Portugal
there is a practice of seeking assistance from embassies.
We often contact embassies to get an interpreter, especially for
complicated languages, such as Chinese. In this way, we are sure that
the translation is reliable. Chinese is a language where we can’t know
if the translation is faithful or not and, for that reason, I can’t [get]
the man from the Chinese shop to do a translation– there has to be
a minimum of trust. Sometimes we don’t have official translators, so
we ask embassies to refer them to us. Judge, Portugal.
In general, professionals emphasise that legal interpretation is difficult and
interpretation of cross-border proceedings, such as EAW procedures, is even
more challenging. A judge interviewed in Finland pointed out that there are
certain limitations relating to the knowledge of interpreters, dealing with
the complicated terminology in EAW matters. Being aware of this, the judges
attempt to use as plain language as possible; however, this is not always
helpful.
Availability of interpreters
Lack of availability of interpreters working in less commonly spoken languages
seems to be a problem in most of the Member States covered. However, in
86
a few Member States, there are difficulties in securing interpretation even
for commonly spoken languages.
Concerns relating to the availability of interpreters in general, for all languages,
were raised by several professionals interviewed in Croatia, Estonia, Latvia,
Malta, Slovenia and Sweden. In Estonia, almost all interviewees had examples
of situations in which an interpreter was needed for a certain language and
they had to put excessive effort into finding someone. It was mentioned that
larger Member States might not experience this problem to such an extent,
given their larger populations.
Estonia has the biggest problem with interpreters. We have a relatively
small number of minorities, and we have a very difficult situation
with some interpreters. We have situations where even a Lithuanian
interpreter cannot be found. Judge, Estonia.
Legal professionals in Malta raised similar concerns. Given that there is a
limited number of interpreters who are qualified to interpret between Maltese
and other languages, finding a suitable interpreter is not always possible. In
these situations, two interpreters may be needed, with English usually as a
relay language.
In Latvia, the engagement of English and Russian interpreters and translators
as permanent full-time employees in some of Latvia’s courts can be viewed
as a positive step to ensure that interpretation and translation services are
always available as soon as they are needed.
It seems that lack of availability of interpreters in general is a problem in
smaller countries. However, professionals from all the Member States covered
identify challenges when it is necessary to interpret into less commonly
spoken languages, even some official languages of the EU. At times, there
can be major difficulties in finding legal interpreters who are available for
EAW proceedings, which must be concluded quickly in accordance with the
applicable deadlines.
Interviewed professionals from Spain commented that, while languages such
as English or French pose no issues, ensuring the availability of interpreters,
and the quality of the services, can be difficult for some EU languages, such
as Bulgarian. The experiences of requested persons confirm this difficulty.
I told him [the police officer] at the beginning, when they ask me if
I need somebody to interpret for me, and I told them yes. So, they
asked me for which language. I told them English. For me, it’s fine. If
they can arrange somebody in Dutch, it would be better. But OK.
English is fine for me. Requested person, Italy.
I’m Danish, but it didn’t come up that I could have a Danish interpreter.
At that time, I was happy with English. Requested person, Portugal.
Interviewees from Lithuania mentioned the challenge of interpreting and
translating from or into less commonly spoken languages, such as Arabic,
Chinese, and Indian and Pakistani languages. One lawyer added that problems
occur even with Russian, as many police officers have no knowledge of the
language. In addition, one defence lawyer added that the quality of translation
services in less commonly spoken languages is problematic. Professionals
from Italy also noted challenges where local languages or dialects are concerned.
In some cases, police officers proceed directly at the time of arrest
to appoint an interpreter, but certainly their indications provide us [as
87
judges] with elements [of what we need] to select an interpreter of
that particular language. This is not always easy to do. Especially for
some African dialects, it is a bit complicated to find an interpreter
immediately. However, there is a list of interpreters available in all
courts of appeal from which we can choose. Judge, Italy.
A requested person interviewed in Portugal, but who had been arrested in
another Member State, raised concerns about the use of interpreters of
Brazilian nationality. They speak Brazilian Portuguese as opposed to European
Portuguese, and the interviewee believed that this had an impact on the
quality of interpretation.
Another requested person, interviewed in Cyprus, complained that
interpretation was not provided in their native language. However, it should
be noted that the law requires that the requested person understands the
language of interpretation; it does not need to be their native language.
In the court, I said I wanted to speak in Kurdish, but they said only
Turkish interpretation was available. Requested person, Cyprus.
Online tools
It is evident from the findings that the use of web technology and online
tools for translation and interpretation purposes varies significantly between
Member States.
For example, in Finland two lawyers and a judge noted that if an interpreter
is not available in person, interpretation can be arranged by videoconference
or by phone. One lawyer also indicated that remote interpretation is used in
particular in cases involving less widely spoken languages. Other Member
States do not seem to have embraced the use of digital tools to this extent.
In Slovakia, the interviewees noted that online interpretation is not used in
practice, to ensure the privacy of the consultations between the requested
person and their lawyer. Moreover, the Slovak courts are not adequately
equipped with technical devices to provide online interpretation.
Interviewees from a number of Member States, such as Estonia, Hungary,
Italy, Latvia, Lithuania, Malta and Spain, specifically referred to the use of
88
digital technologies for interpretation and translation services during the
COVID-19 pandemic.
In Italy, all interviewees reported that during the COVID-19 pandemic
technologies in this field were introduced, but also that they were quickly
abandoned when ordinary judicial activities were resumed. Most interviewees
welcomed the abandonment of digital tools, considering that in-person
services could better assist requested persons and help to protect their
procedural rights. In Estonia, while video tools were often used during the
pandemic, interviewees had noticed misinterpretation or low-quality
interpretation services due to connection problems. Similarly, in Malta one
of the defence lawyers and one of the prosecutors found interpretation
through video link to be impractical.
The use of new
technologies
in the criminal
justice system
and fundamental
rights
The development and use of new technologies, including artificial intelligence (AI), has
increased considerably in the past decades. Following this trend, judicial administrations
are looking into the greater use of advanced technologies. This may include automated
transcription, translation, document search, anonymisation, prediction of litigation outcomes
and decision support.
The increased use of AI in many different areas has led to concerns about its interference with
fundamental rights, such as people’s right to privacy, non-discrimination and access to a fair
trial(*). Such concerns have led to several initiatives at the national and international levels to
regulate the use of AI. These include efforts by the Council of Europe(**) and the EU, including
the AI Act(***).
The risk of AI interfering with fundamental rights depends on the context of its use. The use of
AI intended to assist a judicial authority in researching and interpreting facts and the law was
considered a high-risk area in the EU regulation on AI proposed by the European Commission.
Following the proposed legislation, high-risk AI will be subject to certain requirements, such as
transparency and documentation.
Translation tools as such are currently not considered high-risk AI, although some research
warns that automated translation can be subject to certain biases and errors that need to be
assessed and corrected(****).
(*) FRA, Getting the Future Right– Artificial intelligence and fundamental rights, 2020.
(**) See ‘Council of Europe and Artificial Intelligence’ and ‘Resource Centre Cyberjustice and AI’.
(***) See European Commission, ‘A European approach to artificial intelligence’. At the time of writing
this report, the AI Act was being negotiated by the co-legislators.
(****) See M. Prates, P. Avelar and L. Lamb, ‘Assessing gender bias in machine translation– A case study
with Google Translate’, 11March 2019, and, more generally on bias and algorithms, FRA, Bias in
Algorithms– Artificial intelligence and discrimination, 2022.
According to interviewees from Hungary, courts have not been as quick to
let go of the new digital tools adopted during the pandemic. According to
one judge, requested persons usually prefer online hearings, but they can
ask for a personal hearing too, or the judge can decide on such a hearing.
However, there may be some practical obstacles to ensuring an in-person
hearing of the defendant.
In June 2022, the COVID-19 restrictions were lifted; until then [since
March 2020], only online hearings were allowed. Since the restrictions
were lifted, the requested person can insist on a personal hearing.
Even in the 2months since [June 2022], 80% of the hearings have
still been online, as the process is faster, and the requested persons
prefer this. If there is a second hearing because the requested person
did not agree to the simplified procedure, we try to hold it in person.
The problem here is usually with the detention facility, because there
89
are not enough guards to transport the prisoners [to the court]. Judge,
Hungary.
Translation of documents
Interviewees from most Member States agree that some of the most important
documents are usually translated and provided to the requested person in
a language they can understand, such as the letter of rights or the EAW.
However, professionals see a number of challenges related to the means of
translation (oral or written), the quality of such translations and availability
of translators for less frequently spoken languages. For instance, while all
interviewees from each of the Member States agreed that requested persons
are provided with a translation of notice of their procedural rights (the letter
of rights) and the content of the EAW against them, how this is provided by
the Member States varies.
Based on the findings, having interpreters translate documents orally, instead
of providing a written translation, is common practice in a number of Member
States (Belgium, Croatia, Czechia, Estonia, Germany, Hungary, Italy, Malta,
Latvia, Lithuania, Portugal, Spain and Sweden).
According to two lawyers and a prosecutor interviewed in Belgium, case files
such as the EAW are available in the language of the issuing state and
translated into the language of the proceedings in Belgium, which might not
necessarily be a language that the requested person understands. All the
judicial authorities also mentioned that documents are not always translated
into a language the person understands, but that they are explained to the
requested person later by an interpreter.
No, that is not the case.… the documents will be interpreted; there
is an interpreter that can interpret the documents, but it is not the
case that the documents will be translated in the mother tongue of
the requested person, that is certainly not the case. Investigative
judge, Belgium.
Most of the interviewees from Germany confirmed that the practice of
translating documents only orally is common. Some believed that, according
to German law, a translation is not required if a lawyer can communicate
with the requested person with the help of an interpreter and that only the
EAW needs to be handed over in the language of the requested person.
Translations of documents tend not to take place, given that German
law generally does not require a translation if someone has legal
counsel, and this legal counsel can then communicate with him with
the help of an interpreter. Judge, Germany.
In addition, professionals from Spain noted that, although according to law
the written translation of documents may be replaced with an oral summary
of their content only exceptionally, this seems to be rather common in practice.
It appears, in fact, that oral translation of documents has been commonly
applied as standard.
In confirming that the use of oral translations is common practice, interviewees
from Estonia once again came back to the general lack of interpreters and
translators, especially for less frequently spoken languages. Estonia does
not always have the capacity to translate documents into less widely spoken
languages due to a lack of suitable translators. Instead, the translation is
provided in English or another language that the requested person understands.
90
The letter of rights is provided in a language that they understand.
Regarding other documents, such as court orders, we ask whether a
person wants a translation or whether an interpretation at the hearing
is sufficient. And if they want a translation, they get it. Prosecutor,
Estonia.
The tight time frame of EAW proceedings was commonly cited as a reason
for proving only oral translation. Professionals have found that translation
of documents before hearings is not possible, as the deadlines in EAW
proceedings are too short.
The requested person’s rights were sacrificed for the sake of keeping
the deadlines. Lawyer, Cyprus.
While oral translation can speed up the EAW procedure, one lawyer from
Latvia emphasised that oral translation of documents can compromise the
actual understanding of their content and means that it is impossible for the
requested person to consult the documents again later.
I think that when a document is translated orally, it is difficult to
understand.... There were a lot of episodes when documents were
very long, and you could see that they [the requested persons] didn’t
really understand what was being said to them any more while it
was being translated. For example, judging by myself, it would be
very important for me to have a document to look at. If I haven’t
heard or understood it, it’s much more comfortable to read it over
than to ask again. Lawyer, Latvia.
Furthermore, a judge from Lithuania pointed out that the translation has to
be accurate and understandable, because if there are any concerns that the
requested individual does not understand something about the EAW, procedural
obstacles may ensue, which could result in defence lawyers looking for
loopholes in the EAW process.
Some interviewees across the Member States covered expressed their
dissatisfaction with the quality of the translation services provided to
requested persons.
In court, my experience is that the interpreters, as a rule, are good.
These persons speak the language very well, [but] then, when it
comes to translating the procedural documents, it’s a disaster. Lawyer,
Portugal.
A judge from Finland mentioned that the EAW can become ambiguous when
it is translated, as its content might change because of the translation. A
requested person interviewed in Finland criticised the quality of documents
passed to them.
It was as if the documents had been made by using Google Translate....
they were in Russian, but the wording was strange. Requested person,
Finland.
The need for quality translation was also noted by another requested person,
interviewed in Italy.
You need good communication and good translation of documents,
emails, certified emails sent to other countries, so that things are
clear and you don’t put people in trouble... a person who works and
91
has a life [can end up] in jail because there is a prosecutor or a judge
who sent the wrong email. Requested person, Italy.
Interpretation of consultations with lawyers
While all the interviewed legal professionals agreed that the requested person
can receive interpretation during consultations with lawyers, many had
differing views about whether the state provided interpretation services for
consultations between the lawyer and requested person, including covering
the costs of such interpretation. For instance, interviewees in Italy pointed
out that the costs of interpretation for consultations with a lawyer must be
paid for by the requested person. In contrast, in Germany, Ireland and Sweden,
interviewees appeared to agree that the cost of the interpretation of
consultations with lawyers falls on the state.
One of the Croatian judges shared their opinion that not providing state-
funded interpreters during consultations, due to a lack of financial means,
violates the right of defence, as this requirement is explicitly spelled out in
the directive on the right to interpretation and translation.
If the person does not have the interpretation available, all that we
teach, all their rights, lose content, real effect and meaning. Judge,
Croatia.
However, while the interpretation of consultations with a lawyer are supposed
to be covered by the state budget in Croatia, several defence lawyers stressed
challenges in practice, with one lawyer adding, ‘If you want to do your job
right, you are going to hire an interpreter by yourself.’
Interviewed lawyers from Spain noted that, although they are offered
interpretation by a state-appointed interpreter, it is not uncommon for them
to use private interpreters or even their own linguistic skills to communicate
with the requested person. All interviewees in Italy noted that they must
often organise interpreters for client–lawyer consultations themselves and
that the requested person must pay for such interpretation.
The presence of the interpreter is guaranteed before the judicial body,
in this case before the court of appeal. But if I then go to prison to
talk to the requested person and this person does not speak my
language, unfortunately it is very complicated because either the
conditions for legal aid are met and at that point I can appoint an
interpreter, but otherwise the person has to pay for the interpreter.
Lawyer, Italy.
On the other hand, interviewees in some other Member States (Germany,
Ireland, Latvia, Luxembourg, Portugal and Slovenia) noted that the system
of state-funded interpretation for consultations between the lawyer and
requested person works well and is used quite often.
In Ireland, lawyers appoint their own interpreters for consultations, but this
is covered under the legal aid scheme. In practice, such arrangements tend
to be rather ad hoc. Furthermore, a lawyer would not usually appoint their
own interpreter, but might use the court interpreter for consultations
immediately before or after the court hearing. This sometimes causes delays,
as the lawyer might require an interpreter for a consultation at the same
time as that interpreter is needed in court for another matter.
It is evident from the findings that, in certain situations, lawyers may still
use their own interpreters despite court- or state-appointed interpreters
being available. In Slovenia, while court-appointed interpreters are provided
92
for the interpretation of private consultations with lawyers, this does not
appear to be well communicated to all lawyers, as some were not aware
that they could gain access to a court-paid interpreter for visits with their
clients in detention. Moreover, while there is consensus among professionals
in Spain that lawyers can request that consultations with their client be
interpreted by a state-appointed interpreter, findings show that the use of
private interpreters is not uncommon, and some lawyers simply do not use
such services, given that they speak the language of their clients.
Some lawyers and requested persons raised concerns related to the use of
state-appointed lawyers for client–lawyer consultations and noted the
potential conflict of interest that may ensue. Possible breach of the client–
lawyer confidentiality principle was referenced as being a potential area to
be aware of. Discussing this ethical dilemma that could arise, one lawyer
from Luxembourg noted:
The big problem is that the interpreter is paid by the state, appointed
by the state, and works for the state. On the one hand, when the
procedure is started, the same interpreter works for the state
prosecutor and the investigating judge, who is then present in the
context of the private conversation between the person to be handed
over and the lawyer. This gives a questionable appearance, because
on the other hand, the interpreter interprets the conversation between
the client and the lawyer. The latter is protected by confidentiality.
The interpreter thus jumps from one side to the other. Lawyer,
Luxembourg.
A requested person interviewed in Cyprus recalled not using the only available
interpreter for their language, as the interpreter was working with the police
and there were confidentiality concerns, as advised by their lawyer.
I communicated with my lawyer in English. I would have preferred to
have a Polish interpreter to assist me with my communications with
my lawyer. However, the only interpreter available was a Cypriot who
seemed to be working for the police and did not speak Polish very
well. My lawyer advised me that, in the interests of confidentiality,
it was better not to use the services of this particular interpreter and
I therefore decided to use English to communicate with my lawyer.
Requested person, Cyprus.
93
Endnotes
(
1
) FRA, Rights of suspected and accused persons across the EU: Translation, interpretation and information, Publications Office of the
European Union, Luxembourg, 2016; FRA, Rights in Practice: Access to a lawyer and procedural rights in criminal and European Arrest
Warrant proceedings, Publications Office of the European Union, Luxembourg, 2019.
(
2
) ICCPR, General Comment No32: Article14, Right to equality before courts and tribunals and to a fair trial, Geneva, 2007.
(
3
) ECtHR, Monedero Angora v Spain (dec.), No41138/05, 7October 2008, para.2.
(
4
) Council Framework Decision 2002/584/JHA.
(
5
) Directive 2010/64/EU.
(
6
) Directive 2010/64/EU, Art.3(6) and (7).
(
7
) Art.3(9) stipulates: ‘Translation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in
particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of
defence.’
(
8
) CJEU, C-564/19, Criminal proceedings against IS, 23November 2021, para.138.
(
9
) ECtHR, Hermi v Italy, No18114/02, 18October 2006, para.59.
(
10
) See, for example, CJEU, C-216/14, Gavril Covaci, 15October 2015; CJEU, C-242/22 PPU, TL, 1August 2022.
(
11
) Belgium, European Arrest Warrant Act (Wet betreffende het Europees Aanhoudingsbevel / Loi relative au mandat d'arrêt européen),
19December 2003, Art.10.
(
12
) Croatia, Criminal Procedure Act (Zakon o kaznenom postupku).
(
13
) Cyprus, Cyprus, Law on the Right to Interpretation and Translation during Criminal Procedures of 2014 (O περί του Δικαιώματος σε
Διερμηνεία και Μετάφραση κατά την Ποινική Διαδικασία Νόμος του 2014).
(
14
) Czechia, Act No141/1961 Coll., Code of Criminal Procedure (Zákon o trestním řízení soudním).
(
15
) Estonia, Code of Criminal Procedure (Kriminaalmenetluse seadustik), 12February 2003.
(
16
) Finland, Criminal Procedure Act (Laki oikeudenkäynnistä rikosasioissa/ Lag om rättegång i brottmål), Act No689/1997, 1October 1997,
Chapter6, Section6, subsection1.
(
17
) Germany, Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen), §77, in
connection with the Court Constitution Act (Gerichtsverfassungsgesetz), §185, para.1.
(
18
) Hungary, Code of Criminal Procedure, 2017.
(
19
) Ireland, S.I. No564/2013, European Communities Act 1972 (Interpretation and Translation for Persons in Custody in Garda Síochána
Stations) Regulations, 2013, Section3; Ireland, S.I. No565/2013, European Communities Act 1972 (Interpretation and Translation in Criminal
Proceedings) Regulations, 2013, Section3.
(
20
) Italy, Legislative Decree of 1July 2014, No101, Implementation of Directive 2012/13/EU on the right to information in criminal proceedings
(Decreto Legislativo 1° luglio 2014, No101, Attuazione della Direttiva 2012/13/UE sul diritto all'informazione nei procedimenti penali).
(
21
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.715(1) and Art.698(2), subpara.2.
(
22
) Lithuania, Code of Criminal Procedure (Baudžiamojo proceso kodeksas), 14March2002, NoIX-785, with subsequent amendments.
(
23
) Luxembourg, Act of 8 March 2017 (Loi du 8 mars 2017) transposing Directive 2010/64/EU on the right to interpretation and translation in
criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right to access
to a lawyer in criminal proceedings and in European Arrest Warrant proceedings and amending the Act of 17 March 2004 that transposed
Council Framework Decision 2002/584/JHA. This law has been codified in the Luxembourg Code of Criminal Procedure (Code de procédure
pénale).
(
24
) Malta, Criminal Code, Chapter9 of the Laws of Malta, 10June 1854; Malta, Extradition (Designated Foreign Countries) Order, 7June 2004.
(
25
) Portugal, Law 65/2003 Approving the Legal Framework of the European Arrest Warrant (Lei No65/2003, que aprova o regime jurídico do
mandado de detenção europeu), 23August 2003.
(
26
) Slovenia, Criminal Procedure Act (Zakon o kazenskem postopku), 29 September 1994, Article 8.
(
27
) Slovakia, European Arrest Warrant Act (Zákon o európskom zatýkacom rozkaze), Act No154/2010 Coll. as amended, 9March 2010,
Section14(2); Slovakia, Criminal Procedural Code (Trestný poriadok), Act No.301/2005 Coll. as amended, 24May 2005, Section2(20).
(
28
) Spain, Organic Law 5/2015 (Ley Orgánica 5/2015, de 27 de abril, por la que se modifican la Ley de Enjuiciamiento Criminal y la Ley
Orgánica 6/1985, de 1de julio, del Poder Judicial, para transponer la Directiva 2010/64/UE, de 20 de octubre de 2010, relativa al derecho
a interpretación y a traducción en los procesos penales y la Directiva 2012/13/UE, de 22 de mayo de 2012, relativa al derecho a la
información en los procesos penales).
(
29
) Sweden, Code of Judicial Procedure (1942:740) (Rättegångsbalk [1942:740]), 18July 1942; Sweden, Ministry of Justice, Tolkning och
översättning i brottmål, government bill, 21March 2013.
(
30
) Croatia, Act on Judicial Cooperation in Criminal Matters with Member States of the European Union (Zakon o pravosudnoj suradnji u
kaznenim stvarima s državama članicama Europske Unije), Art.24, para.3.
(
31
) Lithuania, Code of Criminal Procedure (Baudžiamojo proceso kodeksas), 14March2002, NoIX-785, with subsequent amendments, Art.43.
(
32
) Luxembourg, Act of 8March 2017 (Loi du 8 mars 2017), Art.3-2, para.5.
(
33
) Spain, Criminal Procedure Law (Ley de Enjuiciamento Penal), 14September 1882, Art.123.5.
(
34
) For more information relating to the national laws of the Member States, see the Franet country studies.
(
35
) Germany, Court Interpreter Law (Gerichtsdolmetschergesetz), 10 December2019.
(
36
) Latvia, Criminal Procedure Law (Kriminālprocesa likums), 21April 2005, Art.114(3).
(
37
) Malta, Criminal Code (Act NoIV of 2014), Chapter9 of the Laws of Malta, 10June 1854, Art.534A.
(
38
) Slovenia, Rules on court experts, certified appraisers and court interpreters (Pravilnik o sodnih izvedencih, sodnih cenilcih in sodnih
tolmačih), 20December 2018.
(
39
) Sweden, Ministry of Justice, Tolkning och översättning i brottmål, government bill, 21March 2013, p.50.
(
40
) Slovenia, Rules on court experts, certified appraisers and court interpreters (Pravilnik o sodnih izvedencih, sodnih cenilcih in sodnih
tolmačih), 20December 2018, Art.5(1) and Art.10(1).
(
41
) Belgium, Ministry of Justice, Aanvraag tot opname en registratiemodaliteiten – Federale overheidsdienst justitie.
(
42
) Malta, Criminal Code (Act NoIV of 2014), Chapter9 of the Laws of Malta, 10June 1854, Art.534AE(2).
95
CONCLUSION
Mutual trust among Member States is often regarded as the backbone of
EAW proceedings. However, although CJEU jurisprudence and EU law reiterate
that fundamental rights must prevail over mutual trust, the research findings
suggest that, when issuing an EAW, the authorities do not systematically
consider the principle of proportionality. Similarly, when executing an EAW,
they do not systematically consider the fundamental rights implications of
surrendering the individual. One possible way forward could be a greater
reliance on other EU instruments aiming to achieve the same objective of
avoiding impunity without employing the severe measure of issuing an arrest
warrant.
There are still major gaps in law and in practice concerning implementation
of the procedural rights and safeguards guaranteed by EU law in EAW
proceedings. This corroborates previous FRA findings on the criminal procedural
rights applicable to requested persons, which identified shortcomings as well
as good practices.
Overall, the research finds that Member States must increase their efforts
to ensure that requested persons can effectively participate in criminal
proceedings and benefit from a fair trial, in accordance with the EAW
framework decision and the procedural rights legal framework.
Requested persons have certain rights, as granted by the Charter and
secondary law instruments such as the EAW framework decision and the
criminal procedural rights framework directives. Requested persons have
the right to legal representation in both issuing and executing states, as well
as to understand what is happening to them. Therefore, they have the right
to information about their rights and the EAW procedure, including the
consequences of their decisions. They also have the right to interpretation
and translation during the proceedings.
However, these rights are not always fulfilled in practice. This calls for efforts
to address possible shortcomings. On a positive note, the findings indicate
that the right to legal representation in the executing state is generally
respected, with requested persons being informed about it and public
defenders being assigned. However, the research identified shortcomings
when it comes to facilitating the selection and appointment of privately hired
lawyers. Moreover, rights of defence– such as having enough time to consult
with a lawyer in an appropriate setting to prepare a line of defence– are
often compromised because of the fast pace of and very short deadlines in
EAW proceedings.
Furthermore, the right to legal representation in the issuing state appears
not to be fully respected. Requested persons are not systematically informed
about this right by the relevant authorities, and the authorities do not
systematically facilitate the identification and appointment of a lawyer in
the issuing state. In addition, some professionals seem not to be aware of
96
the role of the lawyer in the issuing state. Therefore, the fulfilment of this
right depends on the professional networks and personal contacts of the
requested person’s lawyer in the executing state, which means that in practice
this right is available only to some requested persons. Specific measures
aiming to ensure better implementation of the right to legal defence in the
issuing state appear to be required.
The findings show that, at various stages of the proceedings, requested
persons are generally informed of their rights, the content of the EAW against
them and the rules governing the EAW proceedings. However, some
shortcomings were identified in the research, such as failure to provide
information to requested persons about EAW-specific aspects of their situation,
in particular the rule of speciality and the right to dual legal representation
in the issuing country and in the executing country. In addition, ensuring that
requested persons understand their rights and the consequences of their
choices, including as regards consent to surrender and renunciation of the
speciality rule, emerges as a challenge due to the complexity of legal norms,
linguistic and cultural barriers, and practical difficulties such as a lack of
specialised knowledge on the EAW among judicial authorities and lawyers
or a lack of time for consultation with a lawyer prior to a court hearing. As
a way forward, the creation of specific and accessible information materials
listing all relevant aspects could be considered.
Overall, professionals dealing with EAW proceedings indicate that they could
benefit from EAW-specific training sessions and more accessible information
being available to them, such as lists of lawyers specialising in EAW
proceedings, up-to-date databases of national legislation and case-law
relevant to the EAW, and opportunities to communicate with professionals
from other Member States.
There are some positive findings regarding respect for the right to translation
and interpretation during EAW proceedings. Interviewees from all the Member
States covered agreed that requested persons who do not speak the language
of the proceedings are systematically provided with interpretation services.
However, the quality of interpretation services received criticism, with some
interviewees considering that the interpretation provided is often of a poor
standard. The findings also highlight challenges encountered when providing
interpretation in non-EU languages or less commonly spoken EU languages.
In addition, the findings indicate that providing summary oral translations
instead of full written translations of documents is a common practice.
Professionals explain that short deadlines often make it impossible to order
and receive a full translation. Therefore, greater efforts should be made to
ensure the effective exercise of the right to interpretation and translation.
These could include partnering with other Member States, with the assistance
of relevant national and European professional associations, to share a pool
of qualified, available interpreters able to assist requested persons in various
Member States depending on the language combinations with which they
work; introducing mechanisms for verifying an interpreter’s actual ability to
understand, interpret and translate legal concepts; and engaging in greater
use of technology and digital tools for interpretation and translation during
EAW proceedings, including potentially AI-based tools, where appropriate
and in compliance with fundamental rights safeguards aligned with the EU’s
forthcoming AI Act.
Getting in touch with the EU
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PROMOTING AND PROTECTING
YOUR FUNDAMENTAL RIGHTS
ACROSS THE EU ―
The European Arrest Warrant (EAW) allows Member States to
implement judicial decisions issued in another Member State. It
applies to decisions such as arrests, criminal prosecutions, and
custodial sentences. After being in force for over 20 years, this report
provides evidence for an assessment of the legislation in practice.
FRA’s report looks at the fundamental rights challenges that people
face who are subject to an EAW. They have a right to freedom from
inhuman or degrading treatment and punishment. They also have a
right to access to a lawyer, information, translation, and
interpretation. It examines how these rights are upheld in practice.
The report explores the experiences of people and professionals
involved.
The report indicates that shared challenges exist across Member
States. Authorities do not always consider the fundamental rights
implications of surrendering the individual. Member States must
increase efforts to ensure that people are able to take part in criminal
proceedings and receive a fair trial.
FRA – EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
Schwarzenbergplatz – Vienna – AUSTRIA
TEL. + FAX +
fra.europa.eu
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