European Arrest Warrant

STUDY

EPRS | European Parliamentary Research Service

Author: Wouter van Ballegooij

Ex-Post Evaluation Unit

PE 642.839 – June 2020

European

Arrest Warrant

European

Implementation

Assessment

EPRS | European Parliamentary Research Service

European Arrest

Warrant

European Implementation Assessment

On 6 November 2019, the European Parliament's Committee on Civil

Liberties, Justice and Home Affairs (LIBE) requested authorisation to draw

up an own-initiative implementation report on the Cou ncil Framework

Decision on the European Arrest Warrant and the surrender procedures

between Member States (FD EAW, 2002/584/JHA) (rapporteur: Javier

Zarzalejos, EPP, Spain). The Conference of Committee Chairs gave its

authorisation on 26 November. This triggered the automatic production of

a European implementation assessment by the Ex-Post Evaluation Unit of

the Directorate for Impact Assessment and European Added Value,

Directorate-General for Parliamentary Research Services (EPRS).

This study provides an assessment and conclusions on the implementation

of the FD EAW. It also contains recommendations on how to address the

shortcomings identified, as per the request of the rapporteur. It is intended

to contribute to the Parliament's discussions on this topic, improving

understanding of the subject, and ultimately feeding into the

implementation report. The study concludes that the FD EAW has

simplified and sped up handover procedures, including for some high-

profile cases of serious crime and terrorism. A number of outstanding

challenges relate back to core debates concerning judicial independence,

the nature of mutual recognition and its relationship with international and

EU law and values, constitutional principles and additional harmonisation

measures. Furthermore, there are gaps in effectiveness, efficiency and

coherence with other measures and the application of digital tools. The

study recommends targeted infringement proceedings, support to judicial

authorities and hearing suspects via video-link where appropriate t o avoid

surrender whilst ensuring the effective exercise of defence rights, as well as

a range of measures aimed at achieving humane treatment of prisoners. In

the medium term, for reasons of legitimacy, legal certainty and coher ence,

it recommends a review of the FD EAW as part of an EU judicial cooperation

code in criminal matters.

AUTHOR

Dr Wouter van Ballegooij, Ex-Post Evaluation Unit

This paper has been drawn up by the Ex-Post Evaluation Unit of the Directorate for Impact Assessment and

European Added Value, within the Directorate-General for Parliamentary Research Services (EPRS) of the

Secretariat of the European Parliament.

To contact the author, please email: eprs@ep.europa.eu

LINGUISTIC VERSIONS

Original: EN

Translations: ES

Manuscript completed in May 2020.

DISCLAIMER AND COPYRIGHT

This document is prepared for, and addressed to, the Members and staff of the European Parliament as

background material to assist them in their parliamentary work. The content of the document is the sole

responsibility of its author(s) and any opinions expressed herein should not be taken to represent an official

position of the Parliament.

Reproduction and translation for non-commercial purposes are authorised, provided the source is

acknowledged and the European Parliament is given prior notice and sent a copy.

Brussels © European Union, 2020.

PE 642.839

ISBN: 978-92-846-6716-1

DOI: 10.2861/18661

CAT: QA-02-20-356-EN-N

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http://www.eprs.ep.parl.union.eu/ (intranet)

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European Arrest Warrant

Executive summary

EU Member States have been extraditing suspects and sentenced persons to each other for many

decades, on the basis of bilateral and multilateral conventions. Those arrangements were, however,

slow and thwarted by exceptions based on national sovereignty. As EU integration has progressed,

the Member States have agreed to base their cooperation on the principle of mutual recognition

of judicial decisions, moving away from a system in which decisions on extradition were ultimately

taken at government level. This principle was implemented by the Council framework decision on

the European Arrest Warrant and the surrender procedures between Member States (FD EAW)

adopted in 2002, on the basis of rapid negotiations following the 9/11 terrorist attacks. This study is

the second of two publications envisaged to support an own-initiative implementation report on

the FD EAW by the European Parliament. In February 2020, a framework for analysis as well as

preliminary findings on the implementation of the aforementioned legislation in practice was

presented. This study presents conclusions on the implementation of the framework decision and

recommendations as to how to address the shortcomings identified, as per the request of the

rapporteur.

Key issues and challenges in the implementation of the FD EAW

Surrender procedures based on the FD EAW, implemented since 2004, generally run smoothly.

Available data, discussed in chapter 1, show that it has led to a considerable simplification and

speeding up of handover procedures. This includes some high-profile cases of serious crime and

terrorism. In 2017, the average time between the arrest and surrender of people who did not

consent to surrender was 40 days, a remarkable reduction compared to the one-year aver age under

the pre-existing extradition regime. Notwithstanding these achievements, a number of challenges

remain. More specifically, reports by international organisations, EU institutions, case law and

contributions by practitioners, academics and non-governmental organisations point to a number

of challenges in the issuance and execution of EAWs. Those challenges relate back to core debates

concerning judicial independence, the nature of mutual recognition and its relationship with

international norms, primary EU law and values, including fundamental rights, constitutional

principles and (the need for) additional harmonisation measures. These issues are discussed in

chapter 2. They concern the following matters:

the definition of issuing judicial authorities and their independence from government,

which excludes police officers and organs of the executive, but can include public

prosecutors in accordance with certain conditions (Section 2.1.1.)

the proportionality of a number of EAWs issued for 'minor crimes' and before the case

was 'trial ready', also in view of other possible judicial cooperation measures, where the

European Parliament's call for legislative reform has been answered through guidelines

in a Commission Handbook (Section 2.1.2);

the situation pending the hearing by the executing judicial authority, such as

possibilities offered for hearing by the issuing judicial authorities prior to surrender and

the time limits to be respected, including in the situation when appeals are lodged

(Section 2.2.1);

the verification of double criminality by executing judicial authorities, leading to a lively

academic debate on the compatibility of this requirement with the principle of mutual

recognition and potential further questions to be raised with the CJEU; and the lack of

approximation of certain offences for which verification is no longer allowed

(Section 2.2.2);

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EAWs for nationals and residents of the executing Member State and their interplay with

the framework decision on the transfer of prisoners with the dual aim of social

rehabilitation and the prevention of impunity (Section 2.2.3);

EAWs issued in cases concerning final judgments for the same acts, where the sentence

has been served, or is currently being served, or can no longer be executed (ne bis in

idem) and the larger issue of the prevention and settlement of conflicts of exercise of

jurisdiction in criminal proceedings (Section 2.2.4);

EAWs based on decisions following proceedings at which the person concerned was

not present (in absentia) raising practical problems caused by non-implementation,

differences concerning implementation, or incorrect implementation or application of

the legislation when implementing the framework decision on in absentia (Section

2.2.5);

the role of the executing judicial authority in safeguarding the fundamental rights of

the requested person as developed in the CJEU’s case law, both regarding EAWs where

there are concerns relating to poor detention conditions and broader concerns relating

to the right to a fair trial, including an independent and impartial tribunal (Section 2.2.6);

and

the relationship with third states, generally on the basis of CJEU case law, in accordance

with treaties between the EU and the third states concerned (Norway, Iceland) and

those that might result from negotiations with the UK (Section 2.2.7)

Finally, requested persons have also faced difficulties in effectively exercising their procedural rights

in the issuing and executing Member State, based on the specific provisions relating to the EAW in

the various directives approximating the rights of suspected and accused persons within the EU.

Assessment and conclusions regarding the implementation of the

FD EAW

In chapter 3, conclusions are drawn regarding the implementation of the FD EAW. This has been

done by applying the following evaluation criteria: effectiveness, efficiency, coherence, relevance,

EU added value and compliance with EU values including fundamental rights (Commission’s better

regulation evaluation criteria). On this basis, semi-structured interviews were held with a wide range

of stakeholders. In terms of effectiveness, as discussed, the FD EAW has achieved the objective of

speeding up handover procedures. The FD EAW also led to a considerable simplification of handover

procedures. However, in practice the executive is still called in to assist judicial authorities, practical

cooperation on the basis of the EAW form does not always run smoothly and Court of Justice of the

European Union (CJEU) case law, through offering more clarity on a number of aspects left open by

the generic drafting of the FD EAW, has also led to further practical questions. Finally, the rights of

the defence may have been compromised due to the shortening of appeal possibilities. The

objective of limiting the grounds for refusal based on the verification of double criminality seems to

have been achieved overall. However, there are remaining uncertainties as regards the scope of the

test to be applied in situations where such verification is still allowed. The limitation of the

nationality exception has also been successful. Still, in cases relating to nationals and residents of

the executing Member State, it is found that issuing judicial authorities do not sufficiently focus on

the perspectives of social rehabilitation, before issuing an EAW. The decision of certain Member

States to no longer surrender their nationals to the UK during the transition period testifies to the

enduring sensitivities. CJEU case law has reinforced control by (independent) judicial authorities in

European Arrest Warrant

III

the issuing and executing Member State. At the same time, there are concerns regarding the degree

in which this case law results in effective judicial protection of requested persons.

EU action to monitor and uphold EU values has not led to a swift and effective resolution of threats

to the rule of law in certain Member States. CJEU case law which requires the executing judicial

authorities to assess potential violations of fair trial rights in the issuing Member State on a case-by-

case basis has led to different outcomes regarding EAWs issued by the same Member State, also

revealing a different appreciation of the relationship between (constitutional) values and mutual

recognition. Furthermore, CJEU case law puts the spotlight on the need to provide national courts

with proper human and financial resources. They also need access to (centralised) knowledge on

the criminal justice systems (including EAW decisions) and safeguards for compliance with EU values

in the other Member States. Detention conditions may be easier to assess than compliance with EU

values more generally, especially if the resources of the Fundamental Rights Agency (FRA, criminal

detention database) and Eurojust and other relevant information from the ground are relied upon

in the process. Nevertheless, there is no mechanism in place to ensure a proper follow-up to

assurances provided by issuing judicial authorities after surrender. Much is to be gained through

further intensifying cooperation and funding to international prison monitoring bodies and making

sure their reports are properly followed up by EU Member States. Furthermore, a lot is expected of

EU funding to modernise detention facilities in the Member States and to support them in

addressing the problem of deficient detention conditions. However, this should go hand-in-hand

with domestic criminal justice reform. EU legislation in the area of detention conditions could have

added value. However, the impact would depend on the scope of such legislation (only addressing

procedural requirements in terms of reasoning for pre-trial detention and regular reviews, or also

material detention conditions), the level of harmonisation chosen and its ultimate implementation.

In terms of efficiency, it is reported that the majority of Member States have put mechanisms in

place in their domestic systems for ensuring that EAWs are not issued for minor offences. This has

resulted in the impression that there is a decrease of EAWs issued for ‘minor crimes’. At the same

time, there are still some cases where a suspect appears to be wanted for questioning, rather than

prosecution. Here another cooperation mechanism (the European investigation order, EIO) should

be used. The option provided by the FD EAW for the issuing judicial authorities to hear the requested

person by video-link could also be further stimulated. It is also important for a requested person to

have access to a lawyer in the issuing Member State. In some cases (where surrender would be

disproportionate) this lawyer could encourage the withdrawal of the EAW. However, certain

Member States still do not provide and/or facilitate such access. Furthermore, the inability of a

lawyer to access information on the case in the issuing state can make it impossible for them to

provide effective assistance.

As regards coherence it should be pointed out that the EAW should be seen as a tool for surrender

to be used within the criminal proceedings of the Member States as a subsidiary measure to other,

less intrusive options, in the spirit of a common EU Criminal Justice Area. However, too often judicial

authorities see it as a tool to obtain the person for the benefit of their criminal proceedings, or to

obtain execution of their sentence. In part, this is due to inconsistencies between various EU

measures. Other EU measures either have different objectives (social rehabilitation versus free

movement of judicial decisions for instance), intervene at a different point (a supervision measure

should be considered before issuing an EAW) or do not contain mandatory language in their

operational provisions regarding the need to consider them as an alternative to issuing an EAW

(EIO). Finally, a number of Member States have so far not made sufficient efforts to transpose and

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implement EU procedural rights directives on time and correctly. In the absence of the Commission

launching infringement proceedings, it is to be feared that practitioners will only see EU legislation

in this area as guidance.

In terms of relevance, it is noted that the FD EAW was adopted in 2002. This was prior to the

accession of 13 new Member States and the recent departure of the UK. Since 2002, the European

Parliament has achieved and exercised equal legislative powers with the Council as regards the field

at stake. As long as the FD EAW is not adapted to the Lisbon Treaty framework, it lacks the

democratic legitimacy provided by the involvement of the European Parliament on the basis of the

ordinary legislative procedure in its adoption. In terms of the serious crimes addressed, on the basis

of Europol reports it is noted that terrorism continues to constitute a major threat to security in EU

Member States. At the same time globalisation and digitalisation have led to forms of

cybercriminality that one could have not imagined in 2002. Cooperation between judicial

authorities can be improved through the use of modern techniques. Technological advancement

could also improve the efficiency and fundamental rights compliance of the EAW procedure. The

Covid-19 crisis has forced Member States to enhance the use of modern technologies in the criminal

justice area. The aforementioned option of hearing a requested person by video-link should

therefore be more accessible. Trial by video-link is much more controversial and difficult to organise

at the moment, however it cannot be disregarded altogether, particularly in minor and simple cases

in terms of evidence, where the defendant consents to this modality. At the same time, the Covid-19

crisis has highlighted the need to ensure the effective exercise of defence rights, notably access to

a lawyer and their guaranteed physical presence (with appropriate safety measures) during

questioning and trial.

The European Commission’s indications for assessing the added value of EU criminal law do not

offer sufficient guidance for assessing the added value of the FD EAW. However, it is clearly a

founding stone for the establishment of an area of freedom, security and justice. Its level of

cooperation could not have been achieved without having this objective in mind. This may be

illustrated by the relationship with non-EU Schengen States and the negotiations with the UK after

Brexit.

Recommendations

Chapter 4 offers a number of recommendations on how to overcome the shortcomings identified.

The effective implementation of the FD EAW could be further improved. In this regard, the study

recommends the initiation of infringement proceedings against those Member States which have

incorrectly or deficiently transposed the FD EAW and the related provisions of the procedural rights

directives. Furthermore, the assistance and coordination of Eurojust to the judicial authorities in the

Member States could be further promoted and funded through the EU budget. The same is

recommended for training and exchanges between judicial authorities. The Commission (in

cooperation with Eurojust, the European judicial (training) network and the Fundamental Rights

Agency (FRA) could also develop and regularly update a ‘handbook on judicial cooperation in

criminal matters within the EU’. Finally, judicial authorities would benefit from a centralised

database containing the national jurisprudence on the EAW (as is the case in other areas of EU law).

Compliance with EU values and fundamental rights could be enhanced by systematically involving

judicial authorities in the development of EU mechanisms monitoring compliance with EU values in

the Member States. More generally, Member States could be reminded of the need to comply with

European Arrest Warrant

international obligations by properly executing European Court of Human Rights judgments and

Council of Europe recommendations. In this regard, all EU Member States could be encouraged to

ratify the relevant international conventions. At the same time, the area of freedom, security and

justice (AFSJ) requires a specific level of protection for Member States to comply with. The FRA could

be requested to conduct a comparative study on the follow-up in the issuing Member States, to

offer assurances as regards detention conditions in the context of EAW procedure. EU funding to

modernise detention facilities in the Member States could be further exploited. And finally, as

discussed, the Commission could propose EU legislation in the area of detention conditions.

In terms of efficiency, beyond further stimulating the use of alternatives to an EAW, the

proportionality test to be conducted by judicial authorities could be revised and further clarified in

the light of CJEU case law and comparable provisions in the EIO. The Commission could be called

upon to take enforcement action against those Member States that have not (properly)

implemented the relevant provisions of the Access to a Lawyer Directive. Such enforcement action

should also be taken against Member States that do not grant lawyers access to the case file prior

to the surrender. To enhance coherence, beyond the points mentioned, the Commission could also

adopt a communication discussing the list of 32 ‘serious crimes’ referred to in Article 2(2) FD EAW,

relevant EU harmonisation measures and their national transposition. This communication could

also assess the need for adopting or revising the definitions and sanctions of these offences at EU

level to ensure mutual trust. Where deemed appropriate, the Commission should suggest updates

to the list. As discussed, in terms of relevance, technological advancement could be used to improve

the efficiency and fundamental rights compliance of the EAW procedure.

In the medium term, for reasons of democratic legitimacy, legal certainty and coherence with other

judicial cooperation and procedural rights measures, a ‘Lisbonisation’ of the FD EAW is

recommended. This process could be part of a proposed EU judicial cooperation code in criminal

matters. Such an initiative could also contain legislative proposals on the prevention and resolution

of conflicts of competence and the transfer of proceedings. The final decision on embarking on such

a comprehensive review should take into account the compliance assessment that will shortly be

presented by the European Commission and the mutual evaluations that the Member States are

currently conducting in the Council. In addition, the European Parliament could also consider

requesting the Commission to conduct a ‘fitness check’ evaluating and identifying gaps and

inconsistencies, and considering possible ways of simplifying and streamlining the current EU

framework in the area of judicial cooperation in criminal matters. Another compatible option would

be for it to launch a legislative own-initiative report in accordance with Article 225 TFEU, which

would result in concrete recommendations for the Commission on how to review the FD EAW.

Finally, the European Parliament could conduct further implementation reports on related judicial

cooperation instruments, notably EIO, the FD on in absentia decisions, the FD on transfer of

prisoners, the FD on prohibition and alternative sentences (PAS) and the European supervision order

(ESO) as well as the various measures discussed in section 2.3 concerning the rights of suspects,

including requested persons.

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Contents

1. Introduction _______________________________________________________ 1

1.1. European Arrest Warrant in context ___________________________________ 1

1.1.1. Situation before the adoption of the Framework Decision on the European Arrest

Warrant (FD EAW) ________________________________________________ 1

1.1.2. Origin of the FD EAW ____________________________________________ 3

1.1.3. An overview of the state of play regarding the EAW ____________________ 4

1.1.4. Institutional positions ___________________________________________ 5

1.2. Scope and objectives, methodology and structure _______________________ 7

1.2.1. Scope and objectives____________________________________________ 7

1.2.2. Methodology and structure _______________________________________ 8

2. Key issues and challenges in the implementation of the FD EAW _______________ 9

2.1. Challenges faced in the issuance of EAWs in Member State _________________ 9

2.1.1. The definition of issuing judicial authorities__________________________ 11

2.1.2. Proportionality _______________________________________________ 13

2.2. Challenges faced in the execution of EAWs in the Member States ___________ 17

2.2.1. Hearing and time limits _________________________________________ 19

2.2.2. Double criminality _____________________________________________ 20

2.2.3. Nationals and residents _________________________________________ 23

2.2.4. Ne bis in idem _________________________________________________ 25

2.2.5. In absentia decisions ___________________________________________ 27

2.2.6. Relationship with fundamental rights and EU values ___________________ 29

2.2.7. Relationship with third states, notably Schengen countries and the UK _____ 33

2.3. The impact of EAWs on the rights of individuals in the Member States________ 39

European Arrest Warrant

VII

3. Assessment and conclusions as regards the implementation of the EAW in the Member

States_____________________________________________________________ 43

3.1. Effectiveness ___________________________________________________ 45

3.1.1. Speeding up procedures (recital 1) ________________________________ 45

3.1.2. Removing the complexity and potential for delay inherent in extradition

procedures (recital 5) ____________________________________________ 46

3.1.3. Implementing the principle of mutual recognition (recital 6)_____________ 47

3.1.4. Ensuring that an EAW is subject to sufficient controls by a judicial authority _ 49

3.2. Compliance with EU values including fundamental rights _________________ 50

3.2.1. Actions by EU institutions on the enforcement of EU values _____________ 51

3.2.2. CJEU case law balancing mutual trust and upholding the rule of law_______ 52

3.2.3. CJEU case law balancing mutual trust and fundamental rights in the area of

detention _____________________________________________________ 53

3.2.4. The capacity of practitioners to keep track of CJEU case law _____________ 55

3.2.5. Strengthening the activities of prison monitoring bodies and EU funding for

prison reform __________________________________________________ 56

3.2.6. Potential EU legislation in the area of detention conditions ______________ 56

3.3. Efficiency ______________________________________________________ 58

3.4. Coherence _____________________________________________________ 61

3.4.1. UN and Council of Europe instruments in the area of extradition and mutual legal

assistance _____________________________________________________ 62

3.4.2. EU measures _________________________________________________ 62

3.5. Relevance _____________________________________________________ 64

3.6. EU-added value _________________________________________________ 66

4. Recommendations as to how to address the shortcomings identified __________ 68

4.1. Effectiveness ___________________________________________________ 68

EPRS | European Parliamentary Research Service

VIII

4.2. Compliance with EU values including fundamental rights _________________ 70

4.3. Efficiency ______________________________________________________ 72

4.4. Coherence _____________________________________________________ 72

4.5. Relevance _____________________________________________________ 73

4.6. EU added value _________________________________________________ 74

Annex I: Framework decision on the European Arrest Warrant __________________ 79

Annex II: European Implementation Assessment on the European Arrest Warrant-

Questions for Interviewees____________________________________________ 105

Table of figures

Figure 1: Number of EAWs issued and executed, aggregate 2005-2017 ____________________ 4

Figure 2: Reasons for refusal to execute EAW, 2017 data ________________________________ 5

Figure 3: Issuing an EAW-main steps ______________________________________________ 10

Figure 4: Executing an EAW-main steps ____________________________________________ 19

Figure 5: Simplified view of the intervention and the 5 key evaluation criteria _____________ 44

Table of tables

Table 1: EU extradition agreements with third states compared with the FD EAW __________ 34

European Arrest Warrant

Acronyms and abbreviations

AFSJ Area of Freedom, Security and Justice

CCBE Council of Bars and Law Societies of Europe

CJEU Court of Justice of the European Union

CoE Council of Europe

CPT Council of Europe Committee for the Prevention of Torture

EAW European Arrest Warrant

ECBA European Criminal Bar Association

ECE 1957 European Convention on Extradition

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EIA European Implementation Assessment

EIO European Investigation Order

EJN European Judicial Network

EJtN European Judicial Training Network

EPPO European Public Prosecutor’s Office

EPRS European Parliamentary Research Service

ESO European Supervision Order

EU Charter Charter of Fundamental Rights of the European Union

FD EAW Framework Decision on the European Arrest Warrant

FD PAS Framework Decision on Probation and Alternative Sentences

LIBE European Parliament’s Committee for Civil Liberties, Justice and Home Affairs

EP European Parliament

FRA EU Fundamental Rights Agency

NPM National Preventive Mechanism

UN United Nations

SCIA Schengen Convention Implementation Agreement

SIS Schengen Information System

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

European Arrest Warrant

1. Introduction

1.1. European Arrest Warrant in context

1.1.1. Situation before the adoption of the Framework Decision on the

European Arrest Warrant (FD EAW)

Before the adoption of the FD EAW, EU action and cooperation in the area of extradition took place

within the wider framework at United Nations (UN) and Council of Europe (CoE) level, including the

European Convention on Extradition (ECE).

Extradition procedures were however traditionally slow

and thwarted by conditions and exceptions based on national sovereignty, including the non-

extradition of own nationals (nationality exception), in cases where the criminal acts would not be

punishable under the country's own jurisdiction (double criminality requirement) or in cases where

the criminal acts could be perceived as political offences. Other grounds for refusal, developed in

the case law of the European Court of Human Rights (ECtHR) existed in cases where extradition

might have resulted in a flagrant breach of the European Convention on Human Rights,

without an

effective remedy in the requesting State.

Attempts to constrain the grounds for refusal

had limited

success. A number of Member States did agree to simplify extradition procedures between them in

the 1990 Schengen Convention Implementation Agreement.

Following the entry into force of the

Maastricht Treaty, in 1995 a convention on simplified extradition procedures was agreed upon

among Member States,

followed by an EU extradition convention in 1996,

which however still

maintained options for reservations.

Since the entry into force of the Treaty of Amsterdam in 1999, the EU has been aiming to develop

into an area of freedom, security and justice (AFSJ) without internal frontiers. Th e Eur opea n Co uncil,

in its conclusions adopted that same year, agreed to found Member States' cooperation on the

principle of mutual recognition of judicial decisions (since codified in Articles 67(3) and 82(1) TFEU),

together with the necessary approximation of legislation and based on the presumption that

Member States comply with fundamental rights. This would imply a simple transfer of sentenced

people and fast track extradition procedures for people wanted for prosecution in another Member

State.

However, throughout this study it should be kept in mind that there were at least four

different (and to a certain extent competing) approaches towards the concept of mutual

recognition among the Commission and the 12 Member States and that endorsed it at the time:

European Convention on Extradition, Paris, 13 December 1957, ETS No 073.

Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, consolidated.

ECtHR, Case No 1/1889/161/217, Soering v UK, 26 June 1989.

e.g. First Additional Protocol to the ECE, ET No 86; CoE Convention on the Suppression of Terrorism, ETS No 90.

The Schengen acquis – Convention implementing the Schengen Agreement of 14 June 1985 between the

governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic

on the gradual abolition of checks at their common borders, OJ L 239, 22 September 2000, pp. 19 -62.

Council Act of 10 March 1995, adopted on the basis of Article K.3 of the Treaty on European Union, drawing up the

Convention on simplified extradition procedure between the Member States of the European Union, OJ (C78)1 of

10 March 1995.

Convention drawn up on the basis of Article K.3 of the Treaty on European Union, relating to extradition between the

Member States of the European Union, OJ C 313/12 of 23 October 1996.

Presidency Conclusions-Tampere European Council, 15-16 October 1999, Bul. 10/1999, points 33-35.

More extensively, see W. van Ballegooij, The nature of mutual recognition in European Law, re-examining the notion

from an individual rights perspective with a view to its further development in the criminal justice area, Intersentia,

Antwerpen, 2015, chapter 3.2. (historical development of judicial cooperation in criminal matters in the EU)

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- The UK’s idea which, although officially inspired by the operation of mutual recognition in

the internal market,

mostly tried to avoid the ‘vertical solution of a common set of rules

administered centrally but a new European prosecuting agency’.

In other words, the

establishment of a European public prosecutor, together with a harmonisation or even

unification of parts of substantive and procedural criminal law, to tackle fraud with EU

finances in the Member States, as proposed by the Corpus Juris study,

and on which a

regulation has since been adopted;

- The Nordic Member States’ which backed the UK’s position based on the close cooperation

and high levels of mutual trust among them;

- The Commission’s ambition to achieve automatic recognition and execution of judicial

decisions in criminal matters, based on the perceived success of mutual recognition as a

means of establishing the internal market,

strongly supported in this endeavour by

France

and Spain;

- Germany, which endorsed mutual recognition as a further simplification of extradition and

mutual legal assistance procedures, but which soon would be faced with a backlash from

domestic scholars strongly rejecting the analogy with the single market given the

fundamental rights at stake in the area of criminal law,

as well as its own Constitutional

L’Espace Judiciaire Européen, Actes du Colloque d’Avignon, Minstère de la justice, Paris, 1999, p. 89; V. Mitselegas, ‘The

Constitutional Implications of Mutual Recognition in Criminal Matters in the EU, 43 Common Market Law Review, 2006,

p. 1277-1311, at p. 1279

J.R. Spencer, ‘The European Arrest Warrant’, 7 Cambridge Yearbook of European Legal Studies, 2004, p. 201-2017, citing a

statement by Kate Hoey MP, Parliamentary Under-Secretary of State, 29 May 1999 proposing to ‘work towards

abolition of extradition between Member States so that arrest warrants are directly enforceable’.

M. Delmas-Marty and J. Vervaele (Eds.), The implementation of the Corpus Juris in the Member States (Vol. I-III), Intersentia,

2000.

Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of

the European Public Prosecutor’s Office (‘the EPPO’), OJ L 283, 31.10.2017, p. 1–71

H. Nilsson, ‘Mutual trust and mutual recognition of our differences, a personal view, in: G. de Kerchove & A. Weyembergh

(Eds.), La reconnaissance mutuelle des decisions judiciaires pénales dans l’Union européenne (Editions de l’université

de Bruxelles), Bruxelles : Institut d’études européennes 2001, p. 155-160 ; A. Suominen, The principle of mutual

recognition in cooperation in criminal matters, a study of the principle in four framework decisions and in the

implementation legislation in the Nordic Member States, Intersentia 2011.

Communication from the Commission to the Council and the European Parliament-Mutual recognition of Final Decision

in criminal matters, COM (2000) 495, p. 2: ‘Thus, borrowing from concepts that have worked very well in the creation

of the Single Market, the idea was born that judicial cooperation might also benefit from the concept of mutual

recognition, which, simply states, means that once a certain measures, such as a decision taken by a judge in

exercising his or her official powers in one Member State, has been taken, that measure – in so far as it has

extranational implications- would automatically be accepted in all other Member States, and have the same or at least

similar effects there.’

M. Poelemans, ‘Bilan et perspectives du principe de reconnaissance mutuelle en matière pénale en France’ in: G.

Vernimmen-van Tiggelen, L. Surano and A. Weyembergh(Eds.), The future of mutual recognition in criminal matters/

L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne, Editions de l’université de

Bruxelles, 2009, p. 239-257, at p. 240: ‘le principe de reconnaissance mutuelle est unanimement connu et reconnu par

les acteurs judiciaires francais’ (the principle of mutual recognition is unanimously known and recognized by French

judicial actors).

A. G. Zarza, ‘Mutual recognition in criminal matters in Spain’ in: G. Vernimmen-van Tiggelen, L. Surano and A.

Weyembergh(2009), p. 189-217, at p. 189 ‘The principle of mutual recognition in criminal matters was greeted by

Spain with the same anticipation as when a long-awaited friend is welcomed home.’

T. Wahl, ‘The perception of the principle of mutual recognition of judicial decisions in criminal matters in Germany’, in:

G. Vernimmen-van Tiggelen, L. Surano and A. Weyembergh (2009), p. 115-146, at p. 115-116; B. Schünemann(Ed.), A

Programme for European Criminal Justice, Carl Heymanns Verlag, 2006.

European Arrest Warrant

Court, which reframed mutual recognition as a way of preserving national identity and

statehood in a single European judicial area,

a stance which it has maintained in recent

decades.

1.1.2. Origin of the FD EAW

The 9/11 attacks fundamentally reshaped the policy agenda when it came to implementing the

AFSJ, placing a stronger emphasis on the security aspect. This resulted in the introduction of fast

track transfer and extradition (now renamed 'surrender') procedures to meet the immediate need

to fight terrorism more effectively (the FD EAW, which is reproduced in Annex I to this study).

A European Arrest Warrant is a judicial decision issued, in the form laid down in Annex 1 to the

FD EAW, by a Member State, with a view to the arrest and surrender by another Member State of a

requested person for the purposes of conducting a criminal prosecution or executing a custodial

sentence or detention order.

The surrender procedure has to be completed within 60 days, with

an optional extension of 30 days.

Applying mutual recognition to extradition procedures also

implies limiting grounds for refusal (or non-execution) based on national sovereignty, such as the

above-mentioned double criminality

and nationality exception.

Finally, Member States included

a number of provisions on the rights of the requested person during EAW procedures, including the

right to be assisted by a legal counsel and by an interpreter in accordance with national law.

The FD EAW has been in use since 1 January 2004, i.e. for over 16 years. It is pertinent to note here

that several important changes have been made during this period. The FD EAW was amended in

2009 as regards decisions following proceedings in absentia (at which the person concerned was

not present) by a framework decision that added specific grounds for non-execution.

Since 2009,

several directives have also been adopted that approximate the rights of suspects and accused

persons more generally.

Those directives also cover the rights of individuals subject to EAW

procedures.

Finally, in the meantime, a number of other mutual recognition instruments have

been adopted that both complement the EAW system and in some instances provide useful and

less intrusive alternatives to it.

German Constitutional Court, Judgment of 18 July 2005-on the Law implementing the European Arrest Warrant, 2 BVR

2236/04; F. Geyer,’ The European Arrest Warrant in Germany-Constitutional Mistrust towards the Concept of Mutual

Trust’, in: E. Guild (Ed.) Constitutional challenges to the European Arrest Warrant, Wolf Legal Publishers, 2006

German Federal Constitutional Court, judgment of 30 June 2009 – 2 BvE 2/08 (“Lisbon Treaty”), paras. 252 ff.; German

Federal Constitutional Court, decision of 15 December 2015 – 2 BvR 2735/14 (“Identity Control”), paras. 67 ff.; R.

Niblock, A. Oehmichen, ‘Local law repercussions on EU extradition law: Perspectives from Continental Europe and

England and Wales’, New Journal of European Criminal Law 2017, Vol 8(2), p. 116-127, at p. 119-120.

OJ L 190 p. 1, 2002.

FD EAW, Article 1(1), Annex 1.

FD EAW, Articles 14 to 17.

FD EAW Articles 2, 4(1).

FD EAW, Article 4(6).

FD EAW, Articles 11, 12 and14.

FD EAW, Article 4a; Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions

2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural

rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the

absence of the person concerned at the trial, 2009 OJ (L 81) 24 of 27 March 2009.

In accordance with a road map contained in Council document 14552/1/09 of 21 October 2009.

See Section 2.3.

See Section 2.1.

EPRS | European Parliamentary Research Service

1.1.3. An overview of the state of play regarding the EAW

A lot of information is available pertaining to the implementation of the EAW. Quantitative

information regarding the number of EAWs issued and executed is available for the 2005-2017

period, initially collected by the Council and more recently based on Commission questionnaires. It

should be noted that this is a voluntary exercise, as the FD EAW does not impose a legal obligat ion

on Member States to provide this information. In addition, collecting the appropriate data may be

very cumbersome in Member States that have very decentralised systems, where judicial authorities

at local level can issue and execute EAWs. However, digitalisation should make it easier to retrieve

quantitative data in the future.

Therefore, despite the long implementation period, it should be

noted that the data currently available is far from perfect and complete. Thus, the findings based

solely on (imperfect and incomplete) quantitative data need to be triangulated with information

from other sources and interpreted with care. The most recent quantitative data relating to the

practical operation of the FD EAW is from 2017, during which year 17 491 EAWs were issued and 6

317 were executed.

As can be seen from Figure 1, the number of EAWs issued and executed is on

an upward trend. During the first exchange of views on the own-initiative implementation report in

LIBE, the Commission explained that the fact that roughly 60 % of EAWs are not executed is not to

be interpreted as implying that the instrument is not working properly, since ‘first, it happens often

that an EAW is issued, but that the person cannot be located, because he or she has absconded.

Second, the number of executed EAWs represented may include EAWs issued the year before, but

which are executed one or more years later depending on when the person is found: And, quite

often different EAWs are issued for the same person, which then explains that the number of

executed EAWs is lower once the person is already surrendered.’

e-Evidence Digital Exchange System: state of play, Council document 6429/1/20 of 4 March 2020.

Commission staff working document, Replies to questionnaire on quantitative information on the practical operation of

the European arrest warrant – Year 2017, SWD (2019) 318 final of 28.8.2019.

European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h34

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

Figure 1: Number of EAWs issued and executed, aggregate 2005-2017

Source: Authors' graph based on European Commission data from SWD (2019) 318.

6.9

17.5

0.8

6.3

2005

2007 2009 2011 2013

2015 2017

Thousands

EAWs Executed

EAWs issued

European Arrest Warrant

As to the reasons for issuing EAWs, in 2017, roughly one third of EAWs (2 960 out of 9 005) were

issued for prosecution, although the proportion varied significantly among Member States

(18 Member States provided figures on this point). The most commonly identified categories of

offences, based on the data provided by 21 Member States, were theft and criminal damage (2 649

EAWs), fraud and corruption (1 535 EAWs) and drugs (1 535 EAWs). In 2017, 241 EAWs were issued

for terrorism-related offences, the great majority of which from France

On the basis of the data of

23 Member States it can be

concluded that two-thirds

of wanted persons

consented to their

surrender. On average

they were surrendered

within 15 days. For the

remaining one-third that

did not consent the

procedure lasted on

average 40 days.

This is

well below the time-lim its

enshrined in the FD EAW.

The execution of an EAW

was refused in 796 cases

(by 24 Member States that

provided figures). The

most common reason for

refusal was Article 4(6), execution of a sentence regarding a national or resident (229 cases).

However, it should be noted that those cases do not lead to impunity as the sentence or detention

order should still be executed. The second main grounds for non-execution covers various

fundamental rights issues, including poor detention conditions (109). The third main grounds

relates to in absentia decisions (100).

1.1.4. Institutional positions

In a 2014 resolution based on a legislative own-initiative report,

the European Parliament called

on the Commission to propose a proportionality test, to be performed by the issuing of judicial

authority, and fundamental rights-based grounds for non-execution. The European Commission

response

to Parliament's legislative own-initiative argued that proposing legislative change would

be premature in light of the ability of the Commission to start infringement procedures. It also

Ibidem, p. 3.

Ibidem, p. 4.

Ibidem, p. 5.

Infra Section 2.2.

Ibidem, p. 6.

European Parliament resolution of 27 February 2014, with recommendations to the Commission on the review of the

European Arrest Warrant(2013/2109(INL)), P7_TA(2014)0174; M. del Monte,

Revising the European Arrest Warrant,

European Added Value Assessment accompanying the European Parliament legislative own-initiative report

(rapporteur: Baroness Ludford, PE510.979), EPRS, European Parliament; Annex I: A. Weyembergh with the assistance

of I. Armada and C. Brière, Critical assessment of the existing European Arrest Warrant framework decision; Annex II:

A. Doobay, Assessing the need for intervention at EU level to revise the European Arrest Warrant Framework Decision.

Commission response to text adopted in plenary SP (2014) 447.

Figure 2: Reasons for refusal to execute EAW, 2017 data

Source: Authors'

chart based on European Commission data

SWD(2019)318.

EPRS | European Parliamentary Research Service

preferred to use soft law tools to ensure proper implementation of the FD EAW, such as the

handbook on how to issue and execute a European Arrest Warrant.

In its reply, the Commission

also referred to the development of other mutual recognition instruments 'that both complement

the European Arrest Warrant system and in some instances provide useful and less intrusive

alternatives to it' and to the ongoing work on 'common minimum standards of procedural rights for

suspects and accused persons across the European Union'.

The European Parliament was not satisfied with this reply. In 2016, it reiterated its call for legislative

intervention.

During the negotiations on the Directive on the European Investigation Order (EIO),

the Parliament did successfully insist on a mandatory proportionality test to be performed by the

issuing judicial authority,

a consultation procedure should the executing judicial authority have

doubts concerning the proportionality of the investigative measure and a fundamental rights basis

for non-execution.

It should be noted that, at the time of writing, no information is publicly

available as regards the implementation of these requirements, as the Commission has not yet

complied with its obligation to present a report on the application of the EIO.

More recently, before being appointed Justice Commissioner, Didier Reynders made the following

commitment at his hearing before the European Parliament: 'Concerning the European Arrest

Warrant, I will continue to monitor its application and work closely with you and with the Member

States to continue to improve it. We will consider whether infringement proceedings are necessary

in light of the compliance assessment. I will also seriously consider whether to bring forward a

proposal to revise the European Arrest Warrant.'

The compliance assessment referred to by the

Commissioner is due to be published before the summer.

From the side of the Council there have been no calls for a reform of the FD EAW. However, issues

relating to proportionality and fundamental rights have been discussed as part of the mutual

evaluation exercises

that have been conducted on the practical application of the EAW and

corresponding procedures in the Member States.

In this respect, two recent Council conclusions

on 'promoting mutual recognition by enhancing mutual trust'

and 'alternative measures to

Commission Notice, Handbook on how to issue and execute a European Arrest Warrant, C(2017) 6389 final of

28 September 2017.

European Parliament resolution of 13 December 2016 on the situation of fundamental rights in the European Union

in 2015, P8_TA-PROV(2016)0485

, para 43: 'Reiterates the recommendations to the Commission on the review of the

European Arrest Warrant, notably as regards the introduction of a proportionality test and a fundamental rights

exception.

Directive 2014/41/EU of 3 April 2014 regarding the European investigation order in criminal matters, OJ L30 p.1 of

1 May 2014.

EIO, Article 6.

EIO, Article 11 (f).

EIO, Article 37.

O. Marzocchi, U. Bux, Commitments made at the hearing of Didier Reynders, Commissioner-designate for Justice,

Policy Department for Citizens' Rights and Constitutional Affairs, European Parliament, October 2019.

European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implemention report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h38

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

Final report on the fourth round of mutual evaluations- the practical application of the European arrest warrant and

corresponding surrender procedures between Member States, Council doc. 8302/4/09

of 28 May 2009, p. 15

(proportionality check); Issues of proportionality and fundamental rights in the context of the operation of the

European Arrest Warrant,

Council doc. 9968/14.

EJN website.

Council conclusions on mutual recognition in criminal matters-'Promoting mutual recognition by enhancing mutual

trust', OJ C 449 of 13 December 2018, pp. 6-9.

European Arrest Warrant

detention: the use of non-custodial sanctions and measures in the field of criminal justice'

should

also be mentioned.

1.2. Scope and objectives, methodology and structure

1.2.1. Scope and objectives

On 6 November 2019, the European Parliament's Committee on Civil Liberties, Justice and Home

Affairs (LIBE) requested authorisation to draw up an own-initiative implementation report on the

Council Framework Decision on the European Arrest Warrant and the surrender procedures

between Member States (2002/584/JHA) (rapporteur: Javier Zarzalejos, EPP, Spain). The Conference

of Committee Chairs gave its authorisation on 26 November. This triggered the automatic

production of a European implementation assessment by the Ex-Post Impact Assessment Unit of

the Directorate for Impact Assessment and European Added Value of the Directorate-General for

Parliamentary Research Services (EPRS).

This publication is the second of two publications produced in this context.

1 European Arrest Warrant: Framework for analysis and preliminary findings on its

implementation (February 2020)

2 European Arrest Warrant: European implementation assessment (May 2020)

Both publications are designed to contribute to the Parliament's discussions on this t o pic,

improving understanding of the subject, and ultimately feeding into the implementation report.

Framework for analysis and preliminary findings

The first publication was presented in the form of an in-depth analysis and provided a framework

for analysis as well as preliminary findings on the implementation of the FD EAW in practice. It did

not cover a full spectrum of the FD EAW implementation, but rather explored in some detail those

aspects of the FD EAW implementation that appear to be the most problematic. The selection of the

most pertinent topics explored in this first publication was made on the basis of:

the European Parliament's demands in the 2014 legislative INI (proportionality and

fundamental rights);

the provisions of the FD EAW that were reasons for most refusals to execute EAWs (EAWs

for the execution of sentences against nationals and residents; execution of EAW on the

basis of in absentia decisions); and

the issues that have been the subject of academic (and public) debate (double

criminality).

European implementation assessment

This final study – European Arrest Warrant: European implementation assessment – builds on the

February publication and further explores the implementation of the FD EAW as a whole. In view of

the interconnectedness of the FD EAW with other relevant criminal justice cooperation mechanisms,

it analyses the coherence of the FD EAW with relevant international and EU laws. Its findings are

based on an analysis of the information publicly available (desk research) as well as on the findings

of a series of interviews that have been conducted with relevant stakeholders. Finally, it presents

Council conclusions on alternative measures to detention: the use of non-custodial sanctions and measures in the

field of criminal justice, OJ C 422 of 16 December 2019, pp. 9-13.

EPRS | European Parliamentary Research Service

conclusions on the implementation of the framework decision and tentative recommendations on

how to address shortcomings identified, as per the request of the rapporteur.

1.2.2. Methodology and structure

Methodology

This publication is based on desk research, relying primarily on international and EU institutional

sources as well as contributions from practitioners, academics and NGOs.

The Commission has issued reports on the implementation of the FD EAW in 2005 2006, 2007

and

2011. It is currently preparing its next report. On the Council side, a number of mutual evaluation

exercises have been conducted and will continue on the practical application of the EAW and

corresponding procedures in the Member States. Reports on each Member State are available via

the website of the European judicial network.

This website also contains links to national

legislation, national case law and the case law of the Court of Justice of the European Union (CJEU),

and factsheets regarding the case law of the European Court of Human Rights (ECtHR). Eurojust

provides analyses of CJEU case law on a regular basis.

As it is not the purpose of this study to

provide a comprehensive overview of CJEU case law related to the EAW, it will refer to this and other

resources analysing this case law where appropriate. Furthermore, the Fundamental Rights Agency

(FRA) has produced a number of relevant studies regarding judicial cooperation,

procedural

rights

and detention conditions.

It also operates the Criminal detention database, pr o v iding

information on detention conditions in all 27 EU Member States.

Professional organisations, including the Council of Bars and Law Societies of Europe (CCBE)

and

European Criminal Bar Association (ECBA)

have produced their own reports providing a defence

rights perspective. The FD EAW has been the subject of a lively academic debate inter alia facilitated

by the European criminal law academic network

and the Max Planck Institute for Foreign and

International Criminal Law.

Finally, a number of NGOs, including Fair Trials International,

have

been very active on the EAW. As noted in the previous chapter, in the second phase, desk research

has been complemented with semi-structured interviews and written contributions received in

reply to questions to be found in Annex II. Contributions were received from the main EU

institutional actors (Commission, Council secretariat, Eurojust, Fundamental Rights Agency), experts

working for international organisations (Council of Europe, CPT), professional associations (ECBA,

CCBE, European Network of Councils for the Judiciary (ENCJ)), individual practitioners (judges,

EJN website.

Eurojust, Case law by the Court of Justice of the European Union on the European Arrest Warrant , 15 March 2020

Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers, European Union Agency

for Fundamental Rights, 2016.

Rights in practice: access to a lawyer and procedural rights in criminal proceedings and European Arrest Warrant

proceedings, FRA, 2019.

Criminal detention in the EU, rules and reality, FRA, 2019.

FRA, criminal detention in the EU.

EAW-Rights, Analysis of the implementation and operation of the European Arrest Warrant from the view of defence

practitioners, Council of Bars and Law Societies of Europe/ European Lawyers Foundation, 2016.

How to defend a European Arrest Warrant case, ECBA Handbook on the EAW for defence lawyers, ECBA, 2017.

61,

ECLAN website.

Max Planck Institute for Foreign and International Criminal Law.

Fair Trials International.

European Arrest Warrant

prosecutors, defence lawyers), academics and NGO representatives (Fair Trials International).

Further details on the methodology is provided at the beginning of chapter 3.

Structure

This study is divided into four sections: the introductory section presents the EAW in context

(Section 1.1) and gives a brief overview of the FD EAW state of play (Section 1.1.3), followed by

overview of the institutional positions (Section 1.1.4). The scope, objectives, methodology and

structure are covered in Section 1.2. Following this introduction, the second chapter of the

publication covers selected aspects of the implementation of the FD EAW from the perspectives

of the issuance of EAWs in Member States (Section 2.1), challenges faced in the execution of EAWs

in the Member States (Section 2.2) and the impact of EAWs on the rights of individuals in the

Member States (Section 2.3). Building on the second chapter, the third chapter then draws

conclusions as regards to the implementation of the EAW in the Member States following the

evaluation criteria: effectiveness (Section 3.1), compliance with EU values including fundamental

rights (Section 3.2) efficiency (Section 3.3.), coherence (Section 3.4), relevance (Section 3.5.) and EU

added value (Section 3.6.). Finally, the fourth chapter presents a number of recommendations as to

how to address the shortcomings identified.

2. Key issues and challenges in the implementation of the FD

EAW

2.1. Challenges faced in the issuance of EAWs in Member State

In Article 1(1) of the Framework Decision an EAW is described as 'a judicial decision issued by a

Member State with a view to the arrest and surrender by another Member State of a requested

person for the purpose of conducting a criminal prosecution or executing a custodial sentence or

detention order'. In accordance with Article 1(2) FD EAW, judicial authorities need to 'execute any

European arrest warrant on the basis of the principle of mutual recognition’ and 'in accordance with

the provisions of this Framework Decision'. Finally, Article 1(3) declares that 'this Framework

Decision shall not have the effect of modifying the obligation to respect fundamental rights and

fundamental legal principles as enshrined in Article 6 of the Treaty on European Union'.

More specifically, in accordance with Article 2(1) FD EAW an EAW may be issued for:

[criminal prosecution of] acts punishable by the law of the issuing Member State by a

custodial sentence or a detention order for a maximum period of at least 12 months; or

for [the execution of] sentences of at least four months.

In accordance with article 8 (1) of the FD EAW, the EAW form shall contain the information regarding

the identity and nationality of the requested person; contact details of the issuing judicial authority;

evidence of an enforceable judgment (in case the EAW is issued for the execution of a sentence) and

an arrest warrant or any other enforceable judicial decision having the same effect (in case the EAW

is issued for prosecution). Furthermore, the nature and legal classification of the offence should be

indicated as well as a description of the circumstances in which the offence was committed,

including the time, place and degree of participation in the offence by the requested person; the

penalty imposed, if there is a final judgment or the prescribed scale of penalties for the offence

under the law of the issuing Member State; and if possible, other consequences of the offence.

EPRS | European Parliamentary Research Service

When the location of the requested person is known, the issuing judicial authority may transmit the

European Arrest Warrant directly to the executing judicial authority.

In most cases however, the

person’s location is unknown or uncertain and the EAW should be transmitted to all Member States

via the Schengen information system. Even when the person’s location is known, the issuing judicial

authority may decide to issue an alert.

The SIS alert enables the police authorities in the Member

States to be aware that the person is wanted for arrest. The rules and procedures for Member States’

cooperation concerning alerts for arrest based on EAWs are set out in the SIS II Decision

and

SIRENE (Supplementary Information Request at the National Entries) manual.

The steps for issuing

an EAW are outlined in figure 3 below.

Figure 3: Issuing an EAW-main steps

Source: European Commission, Handbook on how to issue and execute a European Arrest Warrant.

As will be discussed below, 18 years after the text of the FD EAW was drafted, the CJEU is still

providing guidance on how to interpret the key notion of an independent 'judicial authority' and

under which conditions prosecutors can be considered as such. Furthermore, there is no common

definition of the notion of 'criminal prosecution', leading to concerns that surrender is requested

prematurely. The CJEU has interpreted the principle of mutual recognition as meaning that 'the

Article 9(1) FD EAW.

Article 9(2) FD EAW ; European Commission, Handbook on how to issue and execute a European Arrest Warrant,

section 3.3.

OJ L 205, 7.8.2007, p. 63, article 24-31.

Commission Implementing Decision (EU) 2016/1209 of 12 July 2016 replacing the Annex to Commission

Implementing Decision 2013/115/EU on the SIRENE Manual and other implementing measures for the second-

generation Schengen Information System (SIS II), OJ L 203, 28.7.2016, p. 35.

European Arrest Warrant

Member States are in principle obliged to give effect to a European Arrest Warrant'.

However, the

second part of Article 1(2) and 'in accordance with the provisions of this Framework decision' already

indicates that this instrument contains exceptions and conditions to be met before a person may be

surrendered. One of the exceptions that may be imposed is double criminality (which will be

discussed in section 2.2.2).

In any event, reflecting the different positions by the Member States at the time of the adoption of

the Tampere conclusions in 1999,

academic views diverge widely on the question of the degree to

which the application of mutual recognition is appropriate in the area of criminal law (as opposed

to the internal market) given the implications for national sovereignty and fundamental rights and

the extent to which it needs to be balanced by harmonisation of procedural standards and

substantive criminal law.

The dilemma has been described as a need to avoid as far as possible

double checks and controls, but also blind trust and the 'deresponsibilisation' of competent

executing authorities.

This is particularly relevant for cases in which there are concerns regarding

the fundamental rights situation in the issuing Member State, which will be discussed in section

2.2.6, as CJEU case law has now established de facto grounds for non-execution based on primary

EU law. The issues highlighted below will be further discussed in the section below.

2.1.1. The definition of issuing judicial authorities

In Article 1(1) of the Framework Decision an EAW is described as 'a judicial decision' for the purposes

of conducting a 'criminal prosecution'. However, the lack of clarity offered by the FD EAW as regards

the interpretation of these concepts has led to various problems in national implementation and

practice, particularly when surrender was requested by a prosecutor.

The CJEU has since clarified that the concept of 'judicial authority' (Article 6(1) FD EAW) may extend,

more broadly, to the authorities required to participate in administering justice in the legal system

concerned, but it excludes the police

or an organ of the executive

of the Member State. In a

number of more recent cases the CJEU explored the conditions for prosecutors to be able to issue

EAWs, notably the need for their independence from the executive.

This entails the existence of

'statutory rules and an institutional framework capable of guaranteeing that the issuing judicial

authority is not exposed, when adopting a decision to issue such an arrest warrant, to any risk of

being subject, inter alia, to an instruction in a specific case from the executive. Moreover, the

framework must enable prosecutors to assess the necessity and proportionality of issuing an EAW'.

In this context, the CJEU has clarified that in order to afford effective judicial protection, the EAW

system entails a dual level of protection of procedural rights and fundamental rights which must be

enjoyed by the requested person. In addition to the judicial protection provided at the first level, at

CJEU of 16 July 2015, Case C-237/15, PPU, Lanigan, para. 36.

Supra section 1.1.2.

For a discussion see W. van Ballegooij, The Nature of Mutual recognition in European Law: Re-examining the notion from

an invidividual rights perspective with a view to its further development in the criminal justice area, Intersentia, 2015,

Chapter 3, Section 3.

A. Weyembergh, 'Transverse Report on Judicial Control in Cooperation in Criminal Matters. The Evolution from

Traditional Judicial Cooperation to Mutual Recognition', in K. Ligeti (Ed.), Toward a Prosecutor for the European Union,

A Comparative Analysis (Volume 1), Hart Publishing, 2013, pp. 945-985 at p. 972.

UK Supreme Court judgment of 30 May 2012 in Assange v Swedish Prosecution Authority, UKSC 22.

CJEU judgment of 10 November 2016, Case C-452/16 PPU, Poltorak, paras 34-52.

CJEU judgment of 10 November 2016, Case C-477/16 PPU, Kovalkovas, paras 28-48.

CJEU judgment of 27 May 2019, Joined cases C-508/18 OG and C-82/19 PI PPU.

Ibidem, paras 51 and 74. CJEU of 12 December 2019, Case C-625/19 PPU, XD, para. 40; CJEU judgment of 12 December

2019, Joined cases C-566/19 PPU YR and C-626/19 PPU YC, para. 52.

EPRS | European Parliamentary Research Service

which a national decision is adopted, there should be the protection afforded at the second level, at

which the EAW is issued.

If, in the issuing Member State, the competence to issue an EAW does not

lie with a court but with another authority participating in the administration of justice, the decision

to issue the EAW and the proportionality of such a decision must be capable of being the subject, in

the issuing Member State, of court proceedings which meet in full the requirements inherent in

effective judicial protection.

This case law led to a questionnaire by Eurojust on the impact of the

relevant CJEU judgments and notably the question of whether prosecutors are authorised to issue

an EAW in the Member States.

From this document (as revised on 26 November 2019) it becomes

clear that the CJEU case law resulted in changes in certain Member States aimed at ensuring that

only independent prosecutors or (investigating) judges can issue EAWs.

The CJEU has been criticised by civil society for taking a formalistic approach towards the concept

of independence in not seeking to enquire into the practice or other potential forms of influence of

the executive over prosecutors.

Its case law has also received mixed responses in academia,

notably because it raises wider questions regarding the position of public prosecutors within the

criminal justice systems of the Member States. On the one hand, Heimrich has emphasized the need

for public prosecutors’ independence in the context of assessing whether the issuance of an EAW is

proportionate.

On the other hand, Ambos has expressed the concern that making public

prosecutors structurally independent of both the judiciary and executive would lead to problems

regarding political and parliamentary control and lead to a shift in the equality of arms between

prosecution and defence, to the detriment of the latter. There he submits that from a rule of law and

fair trial perspective, EAWs should be issued by (investigative) judges only in future.

Carrera and

Stefan cite the CoE Commission for Democracy through Law (the Venice Commission) in

emphasizing that there is no common standard for the independence of prosecutors. However,

‘guarantees must be provided at the level of the individual case to ensure that there is transparency

concerning instructions that may be given.’

Ibidem, para. 67.

Ibidem, para. 75.

Impact of the CJEU judgments of 27 May 2019 in joined cases OG (C508/18) and PI (C-82/19 PPU) and Case PF (C-

509/18) – Questionnaire by Eurojust and compilation of replies, Council doc. 10016/19 of 11 June 2019.

Ibidem.

L. Baudrihaye-Gérard, 'Can Belgian, French and Swedish prosecutors issue European Arrest Warrants? The CJEU

clarifies the requirement for independent public prosecutors' EU Law analysis blog

, 2 January, 2020.

C. Heimrich, 'European arrest warrants and the independence of the issuing judicial authority – How much

independence is required?' (Case note on joined cases C-508/18 and C-82/19 PPU OG and PI), New Journal of European

Criminal Law, 2019 Vol. (4), pp. 389-398, p. 397.

K. Ambos, 'The German Public Prosecutor as (no) judicial authority within the meaning of the European Arrest Warrant:

A case note on the CJEU's judgment in OG (C-508/18) and PI (C-82/19 PPU)', New Journal of European Criminal Law,

2019, Vol. (4), pp. 399-407, pp. 405-406.

S. Carrera, M. Stefan, ‘Access to Electronic Data for Criminal Investigations Purposes’ in the EU, CEPS paper in Liberty and

Security in Europe, No 20-01, February 2020, p. 39, 40 citing Venice Commission, , Interim Opinion on the Draft Law on

the State Prosecution Office of Montenegro,

CDL-AD(2014)042 of 12,13 December 2014, § 16: ‘The Report further

states that the major reference texts allow for systems where the prosecution service is not independent from the

executive. Nonetheless, where such systems are in place, guarantees must be provided at the level of the individual

case to ensure that there is transparency concerning instructions that may be given.’

European Arrest Warrant

2.1.2. Proportionality

The growing number of EAWs issued (at 17 491 in 2017)

has been a cause for concern amongst

Member States

and the Commission

with regards to proportionality. This has particularly been

the case when EAWs related to 'minor' or 'trivial offences', such as the theft of a chicken,

and for

cases that were not 'trial ready', also taking into account the (pre-trial) detention conditions in

certain issuing Member States.

Beyond the detrimental impact on the individuals concerned, these

practices undermine mutual trust and potentially lead to refusals to execute EAWs, even if

proportionality is not formally cited as the reason for doing so.

When looking at the seriousness of the offence, it is pointed out that in 2017 the most commonly

identified category for which EAWs were issued was theft and criminal damage (2 649 EAWs)

For

some of these cases, which may include shoplifting,

one might wonder whether issuing an EAW

was the most proportionate measure even if the formal conditions for issuing it were met. In reply

to a European parliamentary question

the Commission referred to a 2013 study indicating that at

that point the majority of Member States had mechanisms for ensuring that EAWs were not issued

for minor offences.

The Commission was however not in a position to provide a comprehensive

list of cases where EAWs had been issued for 'trivial offences', as there was no common EU definition

of trivial offences. As will be discussed further in Section 2.2.2, the use of the FD EAW is undisputed

in the case of serious offences, but there is also a lack of a common definition.

Again referring back to the 2017 data, roughly one third of EAWs (2 960 out of 9 005) were issued

for prosecution.

However, as discussed in the section above, in absence of a common definition of

the notion of a 'criminal prosecution' referred to in Article 1(1) FD EAW, it is not possible to establish

how many of these EAWs related to cases that were 'trial-ready', a notion that is in any case difficult

Commission staff working document, Replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2017, SWD (2019) 318 final of 28.8.2019.

Final report on the fourth round of mutual evaluations – the practical application of the European arrest warrant and

corresponding surrender procedures between Member States, Council doc. 8302/4/09

of 28 May 2009, p. 15

(proportionality check); Issues of proportionality and fundamental rights in the context of the operation of the

European arrest warrant,

Council doc. 9968/14.

Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the

Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between

Member States, COM(2011) 175

final of 11 April 2011, p. 7, 8.

The Economist, 'Wanted, for chicken rustling', 30 December 2009.

For background see S. Carrera, E. Guild and N. Hernanz, 'Europe's most wanted? Recalibrating trust in the European

Arrest Warrant system', CEPS, 2013.

For a more detailed discussion see A. Weyembergh with the assistance of I. Armada and C. Brière, Critical assessment

of the existing European Arrest Warrant framework decision, Annex I to M. del Monte, Revising the European Arrest

Warrant, European Added Value Assessment accompanying the European Parliament legislative own-initiative report

(rapporteur: Baroness Ludford, PE510.979), EPRS, European Parliament, pp. 32-38.

Commission staff working document, Replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2017, SWD (2019) 318 final of 28.8.2019, p. 4.

E. Xanthopoulou, Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice, A Role for

Proportionality?, Bloomsbury, 2020, p. 117

European Parliamentary Question E-007089-17 (European Arrest Warrant), 17 November 2017.

Final report towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in

criminal matters, March 2013. According to the survey, the vast majority of Member States have indicated that they

apply a standard proportionality check when a national arrest warrant is issued, as well as for issuing a EAW.

Commission staff working document, Replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2017, SWD (2019) 318 final of 28.8.2019, p. 3.

EPRS | European Parliamentary Research Service

to define given the differences between Member States' criminal procedures and practices.

On the

other hand, there are recent indications of number of examples of EAWs that were issued

prematurely, resulting in the requested person remaining in pre-trial detention for a lengthy period

after having been surrendered by the judicial authorities of another Member State.

In a 2014

resolution based on a legislative own-initiative report,

the European Parliament called on the

Commission to propose a proportionality check when issuing mutual recognition decisions, based

on all the relevant factors and circumstances, such as the seriousness of the offence, whether the

case is trial-ready, the impact on the rights of the requested person, including the protection of

private and family life, the cost implications and the availability of an appropriate, less intrusive

alternative measure.

As regards the cost implications, the European Added Value Assessment accompanying

Parliament's legislative own-initiative report provided a conservative estimate of the average costs

of enforcing an EAW at €20 000 per case. In terms of direct costs to the Member States alone it can

include: the costs of enforcement (wages of police officers escorting the surrendered person, cost

of flights for both the surrendered person and the police officers, cost of hotel accommodation for

the police officers, etc.); operating detention facilities (costs relating to prison guards and

administrators) and warehousing detainees (food, clothing, beds and healthcare, assuming these

are provided); and investigation and judicial fees linked to the EAW.

100

The cost implications for the

individual concerned were not included. However, the ‘cost of non-Europe’ report in the area of

procedural rights and detention conditions, produced by EPRS in December 2017, does provide

some additional data on the cost of pre-trial detention, estimated at €115 per day, with significant

cost variation across Member States,

101

as well as the detrimental effects of detention on

employment, education, private and family life, mental and psychological health.

Instead of seeking to amend the FD EAW, the Commission has preferred to continue with a soft-law

approach. Its handbook on how to issue and execute a European Arrest Warrant

102

pr o vides

guidelines aimed at ensuring that issuing an EAW is justified in a particular case. Those guidelines

focus more narrowly than the European Parliament on the seriousness of the offence and the

For a more detailed discussion see A. Weyembergh with the assistance of I. Armada and C. Brière, Critical assessment

of the existing European Arrest Warrant framework decision, Annex I to M. del Monte, Revising the European Arrest

Warrant, European Added Value Assessment accompanying the European Parliament legislative own-initiative report

(rapporteur: Baroness Ludford, PE510.979), EPRS, European Parliament, pp. 38-42.

Beyond surrender Putting human rights at the heart of the European arrest warrant, Fair Trials International, 2018.

European Parliament resolution of 27 February 2014, with recommendations to the Commission on the review of the

European arrest warrant(2013/2109(INL)), P7_TA(2014)0174; M. del Monte,

Revising the European Arrest Warrant,

European Added Value Assessment accompanying the European Parliament legislative own-initiative report

(rapporteur: Baroness Ludford, PE510.979), EPRS, European Parliament; Annex I: A. Weyembergh with the assistance

of I. Armada and C. Brière, Critical assessment of the existing European Arrest Warrant framework decision; Annex II:

A. Doobay, Assessing the need for intervention at EU level to revise the European Arrest Warrant Framework Decision.

European Parliament resolution of 27 February 2014, with recommendations to the Commission on the review of the

European Arrest Warrant (2013/2109(INL)), P7_TA(2014)0174

, paragraph 7 (b).

100

M. del Monte, Revising the European Arrest Warrant, European Added Value Assessment accompanying the European

Parliament legislative own-initiative report (rapporteur: Baroness Ludford, PE510.979), EPRS, European Parliament,

p. 29.

101

For a more detailed discussion see W. van Ballegooij, The Cost of non-Europe in the area of Procedural Rights and

Detention Conditions, EPRS, December 2017, p 134.

102

Commission Notice, Handbook on how to issue and execute a European Arrest Warrant, C(2017) 6389 final of

28 September 2017.

European Arrest Warrant

likelihood of detention of the person in the issuing Member State. At the same time, they consider

the perspective of the interests of the victims of the offence.

103

Considering the severe consequences that the execution of an EAW has on the requested person's

liberty and the restrictions of free movement, the issuing judicial authorities should consider

assessing a number of factors in order to determine whether issuing an EAW is justified.

In particular, the following factors could be taken into account:

(a) the seriousness of the offence (for example, the harm or danger it has caused);

(b) the likely penalty if the person is found guilty of the alleged offence (for example, whether it

would be a custodial sentence);

(d) the interests of the victims of the offence.

104

Furthermore, the handbook calls on issuing judicial authorities to consider whether 'other judicial

cooperation measures could be used instead of issuing an EAW. Measures that complement the FD

EAW are:

the European investigation order (EIO),

105

a standard form that allows one or more

specific investigative measures in another Member State with a view to obtaining

evidence.

106

Recital 26 calls on judicial authorities to consider issuing an EIO instead of

an EAW if they would like to hear a person;

107

the European supervision order (ESO),

108

which should reduce the impact on the life of

defendants who are subject to prosecution in another Member State by offering the

possibility to await trial in the Member State of residence, subject to supervision

measures (such as regular reporting to the police).

the Council of Europe Convention on the Transfer of Proceedings in Criminal Matters,

109

in accordance with which in relevant cases the criminal proceedings could be

transferred to the Member State where the suspect is residing;

the FD on Financial Penalties,

110

which enables a judicial or administrative authority to

transmit a financial penalty directly to an authority in another Member State and to have

103

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum

standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision

2001/220/JHA OJ L 315, 14 November 2012, p. 57–73; A. Scherrer, I. Kiendl Krišto,

The Victims' Rights Directive

2012/29/EU, European Implementation Assessment, EPRS, December 2017.

104

Commission Notice, Handbook on how to issue and execute a European arrest warrant, C(2017) 6389 final of

28 September 2017, p. 19.

105

Directive 2014/41/EU of 3 April 2014 regarding the European investigation order in criminal matters, OJ (L30)1 of

1 May 2014.

106

EIO, Article 1(1).

107

EIO, Recital 26: With a view to the proportionate use of an EAW, the issuing authority should consider whether an EIO

would be an effective and proportionate means of pursuing criminal proceedings. The issuing authority should

consider, in particular, whether issuing an EIO for the hearing of a suspected or accused person by videoconference

could serve as an effective alternative.

108

Council Framework Decision 2009/829/JHA of 23 October 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 L 294, 11 November 2009.

109

European Convention on the Transfer of Proceedings in Criminal Matters, Strasbourg, 15 May 1972, ETS No 073.

110

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual

recognition to financial penalties, OJ L 76, 22 March 2005, pp. 16-30.

EPRS | European Parliamentary Research Service

that penalty recognised and executed without any further formality. The FD on Fina ncial

Penalties may be considered as one of the methods for enforcing payment before

converting the financial penalty into a custodial sentence, thus avoiding the need to

issue an EAW;

the FD on Transfer of Prisoners,

111

which complements the FD EAW by providing a

system in accordance with which a judgment may be forwarded directly to another

Member State for the purpose of recognition of the judgment and execution of the

sentence there ‘with a view to facilitating the social rehabilitation of the sentenced

person'

112

the FD on Probation and Alternative Sanctions (PAS),

113

which enables the transfer of a

convicted person to a different Member State (typically, but not necessarily, the country

of their nationality) in order to serve a probation order or other alternative sanction

imposed by the original issuing state.

The Commission has not yet complied with its obligation to present a report on the application of

the EIO by 21 May 2019,

114

therefore it is not clear at this stage to what extent this instrument has

been used as an alternative to the European Arrest Warrant. In 2014 the Commission produced a

report

115

on the implementation of the FD on Transfer of Prisoners, the FD on PAS and the ESO. At

that point only 18 Member States had implemented the FD on Transfer of Prisoners, 14 the FD on

PAS and 12 the ESO. Although in the meantime most Member States have implemented the three

measures,

116

at least for the FD on PAS and ESO a 2016 FRA study on criminal detention and

alternatives signalled a lack of their use in practice.

117

In June 2019, the Council held a policy debate on the basis of a Presidency report on 'the way

forward in the field of mutual recognition in criminal matters'.

118

This report indicates that the

reasons for the infrequent use of the FD on PAS and ESO will be explored in the ninth round of

mutual evaluations by the Council, together with the issue of proportionality in relation to the use

of the EAW more generally.

119

In December 2019 the Council also adopted conclusions on

alternative measures to detention: the use of non-custodial sanctions and measures in the field of

111

Framework Decision 2008/909 the application of the principle of mutual recognition to judgments in criminal matters

imposing custodial sentences or measures involving the deprivation of liberty for the purpose of their enforcement

in the European Union (FD Transfer of Prisoners) OJ L 327 of 5 December 2008 p. 27.

112

FD Transfer of Prisoners, Article 3(1).

113

Council Framework Decision 2008/947/JHA of 27 November 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 L 337, 16 December 2008, pp. 102–122.

114

Directive 2014/41/EU of 3 April 2014 regarding the European investigation order in criminal matters, OJ (L30)1 of

1 May 2014, Article 37; European Parliamentary Question E-004099/2019

(European Investigation Order (EIO) – report

on application of the Directive).

115

Report from the Commission to the European Parliament and the Council on the implementation by the Member

States of the Framework Decisions 2008/909/JHA, 2008/947/JHA and 2009/829/JHA on the mutual recognition of

judicial decisions on custodial sentences or measures involving deprivation of liberty, on probation decisions and

alternative sanctions and on supervision measures as an alternative to provisional detention, COM (2014) 57

final of

5 February 2014.

116

The tables of implementation referring to the national legislation concerned are available in the judicial library of the

European Judicial Network.

117

Criminal detention and alternatives: fundamental rights aspects in EU cross-border transfers, European Union Agency

for Fundamental Rights, 2016.

118

The way forward in the field of mutual recognition in criminal matters - Policy debate, Annex to Council doc. 9317/19

of 27 May 2019.

119

Ninth round of mutual evaluations – Scope of the evaluation and contributions to the questionnaire,

Council doc. 6333/19 of 13 February 2019.

European Arrest Warrant

criminal justice.

120

In these conclusions Member States are encouraged to develop or improve

training on the content and the use of the FD PAS and the ESO.

121

They are also encouraged to

improve the collection of data on the application of the FD on PAS and ESO.

122

Furthermore, the

Commission is invited to continue to enhance the implementation of both the FD on PAS and ESO,

taking into account the information gathered during the ninth round of mutual evaluations.

123

2.2. Challenges faced in the execution of EAWs in the Member

States

In accordance with article 11 FD EAW, upon arrest the requested person has a right to be informed

of the EAW and its contents, as well as a right to be assisted by a legal counsel. Article 12 FD EAW

contains a right to provisional release in accordance with the domestic law of the executing Member

State.

124

These and other procedural rights of the requested person will be further discussed in

section 2.3. below. The arrested person may consent to surrender, however that consent and, if

appropriate, expression of renunciation of entitlement to the ‘speciality rule’, referred to in Article

27(2) FD EAW, shall be given before the executing judicial authority. Renunciation of the speciality

rule implies possible prosecution for other offences. In case he or she consents in accordance with

Article 13 FD EAW, a decision on execution of the EAW must be taken within 10 days in accordance

with Article 17(2) FD EAW. In situations where the wanted person objects to its surrender, Member

States must foresee a surrender procedure for EAWs to be completed within 60 days, with an

optional extension of 30 days.

125

This surrender procedure will be discussed in more detail in Section

2.2.1. below.

The surrender procedure contains possibilities for the executing judicial authority to refuse

surrender or to make it subject to certain conditions. The FD EAW introduces mandatory and

optional grounds for non-execution. Article 3 mentions the following mandatory grounds for non-

execution: amnesty (Article 3(1); the person has been finally judged by a Member State and the

sentence has been served or is currently being served (Article 3(2) and; the person is below the age

of criminal responsibility (Article 3(3). Article 4 mentions the following optional grounds for non-

execution: a lack of double criminality (Article 4(1)); prosecution pending in the executing Member

State (Article 4(2)); prosecution for the same offence is precluded in the executing Member State

(Article 4(3)); prosecution or punishment is statute-barred; final judgment was rendered in a third

State (Article 4(5)); the executing Member State 'undertakes' the execution of the sentence (Article

4(6)); extraterritoriality (offences committed outside the territory of the issuing Member State)

(Article 4(7)); and in absentia decisions in accordance with the conditions set out in Article 4a.

126

Article 5 provides for a number of guarantees that may be requested from the issuing judicial

authorities in particular cases where life sentences may be imposed and when the EAW concerns

the prosecution of a national or resident of the executing Member State (on condition that they be

120

OJ C 422 of 16 December 2019, pp. 9-13.

121

OJ C 422 of 16 December 2019, pp. 9-13, para. I. 8.

122

OJ C 422 of 16 December 2019, pp. 9-13, para. I.10.

123

OJ C 422 of 16 December 2019, pp. 9-13, para. II.3.

124

European Commission, Handbook on how to issue and execute a European Arrest Warrant, section 4.6.

125

FD EAW, Article 17(3) and (4).

126

Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA,

2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA,

thereby enhancing the procedural rights of persons

and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person

concerned at the trial, 2009 OJ (L 81) 24 of 27 March 2009.

EPRS | European Parliamentary Research Service

returned to the executing Member State to serve the sentence imposed by the issuing Member

State there).

As discussed in Section 1.3., according to the Commission statistics in 2017 the most common

reason for refusal was a situation in which the executing Member State undertook to execute the

custodial sentence (229 out of 796 cases). Of a total of 796 refusals, 100 related to in absentia

decisions. Fundamental rights issues led to refusals in 109 cases. In the sections 2.2.2.-2.2.7 below,

these grounds will be discussed further, together with a lack of double criminality, ne bis in idem and

the relationship with third countries.

If the executing judicial authority finds the information communicated by the issuing Member State

to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary

information, in particular with respect to the grounds for application and information, is pr o vided

in the EAW form.

127

Here, the assistance of Eurojust may also be requested. Similarly this EU agency

may assist in deciding which EAW to execute in situations when multiple requests have been made

regarding the same person.

128

It should also be informed in cases where the time limits for the

decision to execute an EAW cannot be observed.

129

The executing judicial authority shall notify the

issuing judicial authority immediately of the decision on the action to be taken on the EAW.

130

case the EAW is executed, surrender should take place within 10 days. The main steps of the

procedure in the executing Member States are outlined in figure 4 below.

127

FD EAW, Article 15(2)

128

FD EAW, Article 16; Eurojust Guidelines for deciding on competing requests for surrender and extradition.

129

FD EAW, Article 17(6).

130

FD EAW, Article 22.

European Arrest Warrant

Figure 4: Executing an EAW-main steps

Source: European Commission, Handbook on how to issue and execute a European Arrest Warrant

2.2.1. Hearing and time limits

During the first exchange of views on the own-initiative implementation report in LIBE, the

Commission pointed to problems with mandatory time limits, in particular through lengthy appeal

proceedings.

131

One of the problems here is that the FD EAW is silent on the possibility o f a ppeals

and not all Member States foresee this possibility.

132

In Jeremy F

133

the CJEU clarified that national

appeal procedures would have to respect the time limits laid down in the FD EAW.

134

The question

remains however, whether these time limits are always sufficient to provide an effective remedy for

131

European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h40

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

132

Netherlands Act of 29 April 2004 implementing the Framework Decision of the Council of the European Union on the

European arrest warrant and the surrender procedures between the Member States of the European Union (

the

Surrender Act), article 29.

133

CJEU of 30 May 2013, Case C-168/13 PPU, Jeremy F. v Premier ministre ECLI:EU:C:2013:358

134

Ibidem, para. 59.

EPRS | European Parliamentary Research Service

the defence, particularly in more complicated cases. As will be discussed in section 2.6., some of

these cases concern allegations of a lack of respect for EU values, the undermining of fair trial rights

and of poor detention conditions amounting to inhumane treatment. In those cases, the executing

judicial authority will need to request supplementary information and assurances as regards the

prison conditions.

At the same time, in Lanigan the CJEU held that a failure to observe the time limits of Article 17 FD

EAW does not preclude the executing court from taking a decision on the execution of an EAW.

135

This however raises the question of how long the requested person may be kept in custody. Here

the CJEU clarified that Article 12 FD EAW was not to be interpreted as implying a right for the person

to be released upon expiry of the time limits stipulated in Article 17 FD EAW.

136

At the same time, in

the light of the right to liberty (Article 6 EU Charter), the duration of custody should not be not

excessive in the light of the characteristics of the procedure followed in the case in the main

proceedings, which is a matter to be ascertained by the national court.

137

2.2.2. Double criminality

In its proposal for the FD EAW, the Commission proposed total abolition of the double criminality

requirement, allowing Member States to establish only an exhaustive list of conduct for which they

would refuse surrender ('negative list').

138

In its opinion, the European Parliament disagreed slightly

with the Commission in the sense that it did not want to allow exceptions for crimes referred to in

Article 29 TEU (currently 83 TFEU).

139

However, during their negotiations on the FD EAW, Member

States were not ready to apply the principle of mutual recognition to their entire body of criminal

law. Consequently, as a general rule, Article 2 (1) FD EAW requires that the act in relation to which

arrest and surrender is requested be punishable by the law of the issuing Member State by a

custodial sentence or a detention order for a maximum of at least 12 months or, if surrender is

requested for the execution of a prison sentence or detention order, that the imposed sentence is

for at least four months. On the basis of Article 2(4) FD EAW surrender may, however, 'be subject to

the condition that the acts for which the EAW has been issued constitute an offence under the law

of the executing Member State, whatever the constituent elements or however it is described'.

Article 2(4) relates to an optional grounds for non-execution contained in Article 4(1) FD EAW in

cases where 'the act on which the European arrest warrant is based does not constitute an offence

under the law of the executing Member State'.

140

Based on the statistical data discussed in section

1.1.3. it may be assumed that a large part of the EAWs issued will still be subject to verification of

double criminality.

So far, the CJEU has not provided further interpretation of Article 4(1) FD EAW. However, its

judgment in Case C-289/15, Grundza,

141

regarding the application of the double criminality principle

135

CJEU of 16 July 2015, Case C-237/15, PPU, Minister for Justice and Equality v Francis Lanigan ECLI:EU:C:2015:474, para. 37-

42.

136

Ibidem, para. 52.

137

Ibidem, para. 64.

138

Proposal for a Council framework decision on the European arrest warrant and the surrender procedures between the

Member States, COM (2001) 522

final of 19 September 2001, p.16.

139

European Parliament resolution of 29 November 2001 on the Proposal for a Council framework decision on the

European arrest warrant and the surrender procedures between the Member States (COM(2001) 522 - C5-0453/2001

- 2001/0215(CNS), A5-0397/2001

, amendment 68.

140

FD EAW, Article 4(1) FD EAW.

141

CJEU judgment of 11 January 2017, Case C-289/15, Grundza; A. Falkiewicz, 'The Double Criminality Requirement in

the Area of Freedom, Security and Justice-Reflections in Light of the European Court of Justice Judgment of

European Arrest Warrant

in the context of Article 7(3) of the FD on Transfer of Prisoners

142

is of relevance. In this case the Court

held that 'when assessing double criminality, the competent authority of the executing State is

required to verify whether the factual elements underlying the offence, as reflected in the judgment

handed down by the competent authority of the issuing State, would also, per se, be subject to a

criminal penalty in the executing State if they were present in that State'.

143

Furthermore, 'in

assessing double criminality, the competent authority of the executing State must ascertain, not

whether an interest protected by the issuing State has been infringed, but whether, in the event

that the offence at issue were committed in the territory of the executing State, it would be found

that a similar interest [our emphasis] protected under the national law of that State, had been

infringed'.

144

Even with this clarification, there has been much academic debate regarding the mandate of the

executing judicial authority to verify double criminality and whether its application is compatible

with the principle of mutual recognition more generally. On this point Bachmaier submits that 'A too

strict application of the double criminality test in the realm of the EAW is contrary to the objectives

set out in Articles 67 and 82 TFEU, while it is not necessarily justified on grounds of protection of

human rights'.

145

Muñoz de Morales Romero submits limiting it in such a way that 'only a difference

leading to a problem of 'public order' or 'national identity' could take precedence over

cooperation'.

146

Satzger also argues in favour of a public order clause. At the same time he points to

the difficulty in crafting it while simultaneously respecting the supremacy of EU law.

147

In the

absence of a revision of the FD EAW, Ruiz Yamuza suggests raising further questions with the CJEU

on the interpretation of Article 4(1) FD EAW regarding 'the degree of similarity needed between the

offence for which extradition was requested and other similar crimes under which the acts could be

entirely or partially classified according to the law of the executing Member State.'

148

Exception to the double criminality requirement (list of 32 offences)

The exception to the double criminality requirement is laid down in Article 2(2) FD EAW. For 32

offences (a 'positive list')

149

there is only a single qualified criminality requirement (the acts should be

11 January 2017, Criminal Proceedings against Jozef Grundza', European Criminal Law Review, Vol. 7(3), 2017, pp. 258-

274.

142

Framework Decision 2008/909 the application of the principle of mutual recognition to judgments in criminal matters

imposing custodial sentences or measures involving the deprivation of liberty for the purpose of their enforcement

in the European Union (FD Transfer of Prisoners) OJ (L 327) 27 of 5 December 2008.

143

CJEU judgment of 11 January 2017, Case C-289/15, Grundza, para. 38.

144

CJEU judgment of 11 January 2017, Case C-289/15, Grundza, para. 49.

145

L. Bachmaier, European Arrest Warrant, 'Double criminality and Mutual recognition: A much debated case', European

Criminal Law Review, Vol. 8(2), 2018, pp. 152-159, at p. 159.

146

M. Muñoz de Morales Romero, 'Dual criminality under review: On the Puigdemont case', European Criminal Law

Review, Vol. 8(2), 2018, pp. 167-175, at p. 173.

147

H. Satzger, 'Mutual recognition in Times of Crisis-Mutual recognition in crisis? An Analysis of the New Jurisprudence

on the European Arrest Warrant', European Criminal Law Review, Vol. 8(3), 2018, pp. 317-331; European Criminal Policy

Initiative, A Manifesto on European Criminal Procedure Law, Stockholm University Press, 2014, p. 15.

148

R. Ruiz Yamuza, 'CJEU case law on double criminality.The Grundza-Piotrowskiparadox? Some notes regarding the

Puigdemont case', ERA Forum (2019) 19, pp. 465-484

at p. 481, 482.

149

FD EAW, Article 2(2) refers to participation in a criminal organisation, terrorism, trafficking in human beings, child

abuse, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions, and

explosives, corruption, fraud, including that affecting the financial interests of the Union, laundering of the proceeds

of crime, counterfeiting currency, including of the euro, computer-related crime, environmental crime, facilitation of

unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping,

illegal restraint and hostage-taking, racism and xenophobia, organised or armed robbery, illicit trafficking in cultural

goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of

products, forgery of administrative documents and trafficking therein, forgery of means of payment, illicit trafficking

EPRS | European Parliamentary Research Service

punishable by deprivation of liberties of at least three years in the issuing Member State). If this

condition is fulfilled the warrant gives rise to surrender 'without verification of the double criminality

of the act'. Advocaten voor de Wereld, one of the earliest CJEU cases on the EAW, concerned questions

from the Belgian Constitutional Court regarding the compatibility of the non-verification of double

criminality in accordance with Article 6(2) TEU and more specifically with the principle of legality in

criminal proceedings and the principle of equality and non-discrimination.

150

Advocaten voor de

Wereld claimed a violation of this principle as Article 2(2) FD EAW does not provide precise legal

definitions of the offences for which verification of double criminality is renounced.

151

The CJEU,

however, held this principle not to be violated since it is the crime as defined in the substantive

criminal law of the issuing Member State that should be taken as the point of reference.

152

Furthermore, without going into the question as to whether there was a risk of differentiated

treatment, the CJEU replied that the seriousness of the 32 categories of crime in terms of adversely

affecting public order and public safety warranted dispensing with the verification of double

criminality, particularly in the light of the high degree of trust and solidarity between the Member

States.

153

The distinct vagueness of the list of 'serious crimes' referred to in Article 2(2) FD EAW has

led to questions regarding the proportionality of letting go of the dual criminality requirement in

these cases, particularly given that in accordance with Article 83(1) TFEU, the EU can establish only

'minimum rules' concerning the definition of criminal offences and sanctions. And it is not those

minimum definitions that matter; but the national definitions.

154

One example concerns the 2008

framework decision on the fight against organised crime,

155

which retains the 'double model' of

criminalising either participation in a criminal organisation or conspiracy, taking into account the

underlying differences between civil law and common law jurisdictions. All Member States except

Denmark and Sweden have introduced the key elements of the framework decision. Denmark and

Sweden have other alternative legal instruments to tackle criminal organisations (also known as the

Scandinavian approach).

156

Even within the civil law jurisdictions there are important differences,

notably regarding the incrimination of mafia-type associations.

157

Despite the fact that the

Commission itself 'questions the added value of the instrument from the point of view of achieving

the necessary minimum degree of approximation',

158

it has so far not come up with a proposal to

revise the framework decision on organised crime.

in hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials, trafficking

in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of

aircraft/ships and sabotage.

150

CJEU judgment of 3 May 2007, Case C-303/05, Advocaten voor de Wereld [2007] ECR 3633.

151

Ibidem, para. 13.

152

Ibidem, para. 53.

153

Ibidem, para. 57.

154

Cf. A. Klip, European Criminal Law – An integrative approach, 3rd Edition, Intersentia, 2016, pp. 403-407.

155

Council framework decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, O.J. L 300/42 of

11.11.2008.

156

W. van Ballegooij and T. Zandstra, The cost of non-Europe in the area of organised crime and corruption, EPRS, 2016,

p. 17; A. di Nicola et al., 'Study on paving the way for future policy initiatives in the field of fight against organised

crime: the effectiveness of specific criminal law measures targeting organised crime', Study written for the European

Commission, DG HOME, February 2015,

http://ec.europa.eu/dgs/home-affairs/ e -

library/docs/20150312_1_amoc_report_020315_0_220_part_1_en.pdf and http://ec.europa.eu/dgs/home-affairs/ e -

library/docs/20150312_1_amoc_report_020315_0_220_part_2_en.pdf.

157

See Europol threat assessment, Italian Organised Crime, 2013.

158

Report from the Commission to the European Parliament and the Council based on Article 10 of Council Framework

Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime; COM (2016)0448

final of 7.7.2016,

p. 1.

European Arrest Warrant

Even if criminal definitions and sanctions have recently been harmonised by the Directive on

Terrorism,

159

this Directive does not prevent Member States adopting or maintaining criminal

definitions which cover other (intentional) acts. It also explicitly refers to a number of fundamental

rights principles based on which Member States may limit criminal liability. This means that certain

differences between Member States' legal systems will also remain regarding this aspect, which

might lead to obstacles in cooperation and fundamental rights concerns.

160

The recent CJEU case of

161

concerned the interpretation of the threshold of a custodial sentence for a maximum period of

at least 3 years under Article 2(2) FD EAW. Should the executing judicial authority consider the

criminal legislation on glorification of terrorism and humiliation of the victims of terrorism

applicable to the facts in the main proceedings leading to the conviction, or the version applicable

at the date of issue of the EAW? In the latter case, the 3-year threshold would be met, in the prior

case it would not have been. The CJEU pointed to the relevance of article 2(1) FD EAW, which refers

to the sentence passed and for there to be consistency between this article and Article 2(2) FD

EAW.

162

Furthermore it held that it follows from the wording of Section (c) of the EAW form and the

term ‘imposed’ that the sentence is the one resulting from the version of the law of the issuing

Member State which is applicable to the facts in question.

163

Also, if the law of the issuing Member

State, which the executing authority must take into account pursuant to Article 2(2) EAW FD, was

not the one applicable to the facts giving rise to the case in which the EAW was issued, the executing

authority would be required to verify whether that law had not been amended subsequently to the

date of those facts.

164

This interpretation would run counter the purpose of EAW FD and, in view of

the difficulties the executing authority might encounter in identifying the relevant versions of the

law, it would be a source of uncertainty and be contrary to the principle of legal certainty.

165

Fin ally,

the fact that the offence at issue cannot give rise to surrender without verification of double

criminality pursuant to Article 2(2) EAW FD does not necessarily mean that the execution of the EAW

has to be refused. The executing authority is obliged to examine the criterion of double criminality

in the light of that offence.

166

The case shows the enduring importance of the 3 year punishment

threshold as applicable at the time of the conviction, and thereby the need for harmonisation of

definitions and sanctions at EU level to provide a basis for smooth cooperation.

2.2.3. Nationals and residents

In its proposal for a FD EAW, the Commission argued that since the European Arrest Warrant is based

on the idea of citizenship of the Union, the exception provided for a country's national, which

existed under traditional extradition arrangements, should no longer apply.

167

However, during

their negotiations for the FD EAW, Member States opposed this idea, particularly regarding the

159

Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and

replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, OJ L 88/6 of, 31

March 2017.

160

Cf. W. van Ballegooij, P. Bakowski, The cost of non-Europe in the Fight against Terrorism, EPRS, European Parliament,

2018, p. 28,29.

161

CJEU of 3 March 2020 in Case C-717/18 ECLI:EU:C:2020:142

162

Ibidem, para. 22-26.

163

Ibidem, para. 30, 31.

164

Ibidem, para. 36,”è

165

Ibidem, para. 38

166

Ibidem, para. 41,42.

167

Proposal for a Council framework decision on the European Arrest Warrant and the surrender procedures between

the Member States, COM(2001) 522

final of 19 September 2001, p.5.

EPRS | European Parliamentary Research Service

execution of sentences.

168

As a result, in accordance with Article 4 (6) FD EAW, the executing judicial

authority may refuse to execute an arrest warrant in cases where the EAW has been issued for the

purpose of execution of a custodial sentence or detention order where the requested person is

staying in or is a national or resident of the executing Member State, and that state undertakes to

execute the sentence or detention order in accordance with its domestic law. CJEU case law has

since defined the notions of 'resident' and 'staying in'.

169

It has also accepted domestic rules

providing for the non-execution of a EAW in the case of migrant Union citizens with a view to the

enforcement of a custodial sentence, only if they had been lawfully resident within the national

territory for a continuous period of five years.

170

Furthermore, in accordance with Article 5(3) FD

EAW, where a person who is the subject of an EAW or the purposes of prosecution is a national or

resident of the executing Member State, surrender may be subject to the condition that the person,

after being heard, is returned to the executing Member State in order to serve there the custodial

sentence or detention order passed against him in the issuing Member State.

As discussed, the FD on Transfer of Prisoners

171

complements the FD EAW by providing a system in

accordance with which a judgment may be forwarded directly to another Member State for the

purpose of the recognition of the judgment and execution of the sentence.

172

It also applies in the

situation where an EAW for the execution of a sentence has been refused and the executing Member

State has agreed to execute the sentence itself.

173

At the same time practical problems have arisen

as regards the interaction between the two instruments, notably with regards to the need for the

certificate contained in Annex I to the FD on Transfer of Prisoners to be forwarded.

174

The CJEU has

provided certain guidance in the Popławski cases.

175

In particular it has underlined that the executing

authority may only refuse surrender on the basis of Article 4 (6) FD EAW if assurance is given that the

custodial sentence passed in the issuing State against the person concerned can actually be

enforced in the executing Member State.

176

In this context, the CJEU emphasises the paramount

importance of avoiding all risk of impunity for the requested person.

177

Furthermore, the CJEU has

168

As regards to EAWs for prosecution, the following guarantee has been included in Article 5 FD EAW: ‘where a person

who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the

executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to

the executing Member State in order to serve there the custodial sentence or detention order passed against him in

the issuing Member State.’

169

CJEU judgment of 17 July 2008, Case C-66/08 Kozłowski.

170

CJEU judgment of 6 October 2009, Case C-123/08, Wolzenburg.

171

Framework Decision 2008/909 the application of the principle of mutual recognition to judgments in criminal matters

imposing custodial sentences or measures involving the deprivation of liberty for the purpose of their enforcement

in the European Union (FD Transfer of Prisoners) OJ (L 327) 27 of 5 December 2008.

172

FD Transfer of Prisoners, Article 3(1): ‘The purpose of this Framework Decision is to establish the rules under which a

Member State, with a view to facilitating the social rehabilitation of the sentenced person, is to recognise a judgment

and enforce the sentence.’

173

FD Transfer of Prisoners, Article 25: ‘Without prejudice to Framework Decision 2002/584/JHA, provisions of this

Framework Decision shall apply, mutatis mutandis to the extent they are compatible with provisions under that

Framework Decision, to enforcement of sentences in cases where a Member State undertakes to enforce the sentence

in cases pursuant to Article 4(6) of that Framework Decision, or where, acting under Article 5(3) of that Framework

Decision, it has imposed the condition that the person has to be returned to serve the sentence in the Member State

concerned, so as to avoid impunity of the person concerned.’

174

Interview with a representative of the Council Secretariat; Article 4, 5 FD Transfer of Prisoners.

175

CJEU judgment of 29 June 2017, Case C-579/15, Popławski I; CJEU judgment of 24 June 2019, Case C-573/17,

Popławski II.

176

CJEU judgment of 24 June 2019, Case C-573/17, Popławski II, para. 22.

177

CJEU judgment of 24 June 2019, Case C-573/17, Popławski II, para. 86; CJEU judgment of 29 June 2017, Case C-579/15,

Popławski I, para. 23; Commission notice, Handbook on the transfer of sentenced persons and custodial sentences in

the European Union, OJ C 403/2 of 29 November 2019, p. 34.

European Arrest Warrant

recently clarified that when the execution of a EAW issued for the purposes of criminal proceedings

is subject to the return guarantee, the executing Member State can, in order to enforce the

execution of a custodial sentence or a detention order imposed in the issuing Member State on the

person concerned, adapt the duration of that sentence or detention only within the strict conditions

set out in Article 8(2) of FD on Transfer of Prisoners.

178

2.2.4. Ne bis in idem

The principle of ‘ne bis in idem’ has been codified in Article 50 of the EU Charter on ‘the right not to

be tried or punished twice in criminal proceedings for the same offence’.

179

The explanations to the

Charter clarify that Article 50 applies not only within the jurisdiction of one State, but also between

the jurisdictions of several Member States. That corresponds to Articles 54-58

180

of the Schengen

Convention Implementation Agreement (SCIA)

181

as incorporated in the EU Treaties by a protocol

to the Treaty of Amsterdam.

182

Article 54 of the SCIA stipulates:

A person whose trial has been finally disposed of in a Contracting Party may not be prosecuted in

another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been

enforced, is actually in the process of being enforced or can no longer be enforced under the laws of

the sentencing Contracting Party.

Ne bis in idem serves as grounds for mandatory non-execution in Article 3(2) FD EAW: ‘The person

has finally been judged by a Member State and the sentence has been served or is currently being

served (Article 3(2) FD EAW)’. It also features as an optional grounds for non-execution in accordance

with Article 4(3): ‘a decision to halt proceedings or where a final judgment had been passed upon

the requested person’.

The ne bis in idem principle was mentioned as a subject for harmonisation under the ‘programme of

measures to implement the principle of mutual recognition of decisions in criminal matters’

183

adopted by the Justice and Home Affairs Council in November 2000. This harmonisation initiative

was placed in the more general context of preventing conflicts of jurisdiction from appearing in the

first place. A Commission green paper on conflicts of jurisdiction and the principle of ne bis in idem

was produced in 2005, but it did not lead to comprehensive harmonisation.

184

In 2009, a fr a m ework

decision on the prevention and settlement of conflicts of exercise of jurisdiction in criminal

proceedings was adopted,

185

aimed at preventing parallel prosecutions covering the same acts and

the same person. This framework decision however lacks binding rules preventing conflicts of

178

CJEU judgment of 11 March 2020, Case C-314/18, SF, ECLI:EU:C:2020:191, paras. 63-68.

179

Article 50 EU Charter: ‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for

which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

180

’ European Criminal Bar Association Initiative 2017/2018 “Agenda 2020: A new Roadmap on minimum standards of

certain procedural safeguards”, measure E, conflicts of jurisdiction and ne bis in idem.

181

The Schengen acquis as referred to in Article 1(2) of Council Decision 1999/435/EC of 20 May 1999 OJ L 239/1 of 22

September 2000.

182

Council decision of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the

European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which

constitute the Schengen acquis, OJ L 176, p. 17 of 10 July 1999.

183

Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C 12/ 10

of 15 January 2001.

184

Cf. Commission green paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings, COM

(2005) 696 of 23 December 2005.

185

Framework decision 2009/948 on prevention and settlement of conflicts of exercise of jurisdiction in criminal

proceedings, OJ L 328, p. 42 of 15 December 2009.

EPRS | European Parliamentary Research Service

jurisdiction and mechanisms to solve conflicts of jurisdiction when parallel proceedings already

exist in two or more Member States. It also fails to provide an effective remedy for the defendant.

186

Harmonisation attempts were, however, overshadowed by the development of the ne bis in idem

principle in the case law of the CJEU. In this case law the Court has provided guidance on the notions

of ‘final decision’, ‘same acts’ and the enforcement condition of Article 54 SCIA.

187

A number of these

cases arose in the context of surrender proceedings. The Mantello case,

188

for example, concerned

an individual who had been convicted in Italy in 2005 for possession of drugs. In 2008 he was

arrested in Germany based on an EAW based on charges of drug trafficking, an act the Italian

prosecutors were aware of but had not prosecuted him for in 2005. In this case the CJEU first recalled

its case law in which the concept of ‘same acts’ had been interpreted as referring only to the nature

of the acts, encompassing a set of concrete circumstances which are inextricably linked together,

irrespective of the legal classification given to them or the legal interest protected.

189

The CJEU

furthermore held that in view of the shared objective Article 54 of the SCIA and Article 3(2) of the FD

EAW, which is to ensure that a person is not prosecuted or tried more than once in respect of the

same acts, it must be accepted that an interpretation of that concept given in the context of the

SCIA is equally valid for the purposes of the framework decision.

190

The CJEU then focused on the

question of whether Mr Mantello had been ‘finally judged’, which would have resulted in non-

execution in accordance with Article 3(2) FD EAW

191

The Court, however held this not to be the case

as the decision of the public prosecutor not to prosecute for certain offences, even though the

material evidence was already available, did not bar further prosecution for those offences.

192

In this

regard the Court stressed that the question of whether a person has been ‘finally judged’ for the

purposes of Article 3(2) of the FD EAW is determined by the law of the Member State in which the

judgment was delivered.

193

In AY

194

the CJEU furthermore held that Articles 3(2) and 4(3) EAW FD

cannot be relied on for the purpose of refusing to execute an EAW in cases where a public

prosecutor’s office terminated an investigation opened against an unknown person during which

the person who is the subject of the EAW (AY) was interviewed as a witness only.

195

Practitioners

196

and academics

197

have called for EU harmonisation initiatives in the area of conflicts

of jurisdiction and ne bis in idem to be revived. In 2017, the European Law Institute proposed three

186

Report from the Commission to the European Parliament and the Council on the implementation by the Member States

of Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of

jurisdiction in criminal proceedings, COM (2014) 313, p. 11; A. Klip, European Criminal Law, An integrative approach, 3rd

edition, Intersentia, 2016, pp. 450-456.;The status of implementation of this framework decision is accessibly through

the EJN website

187

Eurojust, Case Law by the Court of Justice of the European Union on the European Arrest Warrant, October 2018, section

7.3.;. W. van Ballegooij, The nature of mutual recognition in European Law, re-examining the notion from an individual

rights perspective with a view to its further development in the criminal justice area, Intersentia, Antwerpen, 2015,

chapter 3.6.

188

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683

189

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683, para. 39.

190

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683, para. 40.

191

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683, para. 43.

192

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683, para. 51.

193

CJEU of 16 November 2010 in case C-261/09, Mantello ECLI:EU:C:2010:683, para. 46..

194

CJEU of 25 July 2018 in Case 268/17 ,AY ECLI:EU:C:2018:602

195

Ibidem, para. 63.

196

European Criminal Bar Association Initiative 2017/2018 “Agenda 2020: A new Roadmap on minimum standards of

certain procedural safeguards”, measure E, conflicts of jurisdiction and ne bis in idem.

197

M. Wasmeier,’ Ne bis in idem and the enforcement conditions, balancing freedom, security and justice?’ New Journal of

European Criminal Law, 2014, vol. 4, p. 534-555.

European Arrest Warrant

legislative policy options

198

for filling the gaps in the current EU legislative framework. The

proposals' added value is discussed both from the perspective of strengthening the fundamental

right of those living in the AFSJ and ensuring the good administration of justice.

2.2.5. In absentia decisions

As regards in absentia decisions, Member States agreed on a framework decision in 2009, adding an

optional ground for non-execution (Article 4a).

199

According to this article, if the requested person

did not appear in person at the trial resulting in the decision, the executing judicial authority can

refuse to execute the EAW unless certain conditions are fulfilled, such as: being handed a summons

for the trial in person and being informed that a decision may be handed down if the requested

person does not appear for trial (Article 4a(1) FD EAW):

Decisions rendered following a trial at which the person did not appear in person

1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for

the purpose of executing a custodial sentence or a detention order if the person did not appear in

person at the trial resulting in the decision, unless the European Arrest Warrant states that the person,

in accordance with further procedural requirements defined in the national law of the issuing

Member State:

(a) in due time: (i) either was summoned in person and thereby informed of the scheduled date and

place of the trial which resulted in the decision, or by other means actually received official

information of the scheduled date and place of that trial in such a manner that it was unequivocally

established that he or she was aware of the scheduled trial; and (ii) was informed that a decision may

be handed down if he or she does not appear for the trial; or

being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either

appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed

defended by that counsellor at the trial; or

after being served with the decision and being expressly informed about the right to a retrial, or an

appeal, in which the person has the right to participate and which allows the merits of the case,

including fresh evidence, to be re-examined, and which may lead to the original decision being

reversed: (i) expressly stated that he or she does not contest the decision; or (ii) did not request a retrial

or appeal within the applicable timeframe; or

was not personally served with the decision but: (i) will be personally served with it without delay after

the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the

person has the right to participate and which allows the merits of the case, including fresh evidence,

to be re-examined, and which may lead to the original decision being reversed; and (ii) will be

informed of the time frame within which he or she has to request such a retrial or appeal, as

mentioned in the relevant European Arrest Warrant.

As testified by the relatively large number of 100 refusals relating to in absentia decisions in 2017,

200

the interpretation and application of this ground for refusal has led to many practical and legal

problems. During the first exchange of views on the own-initiative implementation report in LIBE,

198

European Law Institute, Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in

criminal matters in the European Union, 2017.

199

Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA,

2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons

and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person

concerned at the trial, 2009 OJ (L 81) 24 of 27 March 2009.

200

Commission staff working document, Replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2017, SWD(2019) 318 final of 28.8.2019, p. 6.

EPRS | European Parliamentary Research Service

the Commission indicated that the ground for refusal on in absentia has quite often not been

properly implemented by the Member States.

201

This was corroborated in an interview with a

representative of the Council Secretariat who also pointed out that some Member States have

transposed Article 4a FD EAW as a mandatory ground for non-execution. Many Member States do

not allow for judgments in absentia, or only in limited cases. Their judicial authorities are also very

hesitant to cooperate in the execution such judgments originating from another EU Member State.

The CJEU Melloni case

202

revolved around a conflict between Article 24 of the Spanish constitution,

interpreted as allowing for a review of a conviction in absentia in the requesting Member State, and

Article 4(a) (1) FD EAW, which if its conditions are met does not foresee in such a right. The CJEU held

the latter article to be compatible with the right to an effective remedy and the rights of defence in

accordance with Articles 47 and 48 of the EU Charter and the ECHR.

203

Allowing national authorities

to apply the (higher) domestic standard in this case would compromise the primacy, unity and

effectiveness of EU law.

204

Moreover, there are differences as regards the criteria for a judgment in absentia

205

and summoning

the person. Furthermore, the lack of knowledge of each other’s legal systems complicated judicial

cooperation. At the same time the relevant section of the EAW form is not always completed

extensively and precisely (Section D).

206

This leads to uncertainty in the executing Member States,

requests for additional information and delays.

A very good starting point for obtaining a deeper understanding of the problems concerned is the

outcome of the Commission funded research project on 'Improving mutual recognition of European

arrest warrants for the purpose of executing in absentia judgments'.

207

Its main authors, Brodersen,

Glerum and Klip, further highlight the practical problems caused by the lack of (proper) information

provided by issuing judicial authorities, leading to requests for supplementary information, delays,

and extra costs, as well as leading to unjustified refusals to execute the EAW or, inversely, to

decisions to surrender that in hindsight were incorrect.

208

They discuss how the practical problems

may be caused by non-implementation, differences concerning implementation, incorrect

implementation or application of the legislation implementing the FD on in absentia.

209

The research

project has resulted in a number of conclusions and recommendations for the issuing and executing

judicial authorities, Member States and the European Union, including a number of proposals for

additional EU legislation.

210

201

European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h40

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

202

CJEU of 26 February 2013 in Case C-399/11 Melloni ECLI:EU:C:2013:107

203

Ibidem, para. 49, 50.

204

Ibidem, para. 60.

205

Cf. CJEU of 10 August 2017 in case C-270/17 PPU, Tadas Tupikas ECLI:EU:C:2017:628

206

For a consolidated version of the FD EAW see Annex I to this study.

207

InAbsentiEAW, Research project on European arrest warrants issued for the enforcement of sentences after in absentia

trials.

208

Brodersen, Glerum, Klip, Improving Mutual Recognition of European Arrest Warrants for the Purpose of Executing

Judgments Rendered Following a Trial at which the Person Concerned Did Not Appear in Person, p. 7, 8.

209

Ibidem, p. 13.

210

Ibidem, Chapter 9.

European Arrest Warrant

2.2.6. Relationship with fundamental rights and EU values

The application of the principle of mutual recognition to intra-EU extradition procedures resulted in

a deviation from the traditional allocation of Member States' responsibilities in protecting the

fundamental rights of the individual concerned. Article1(3) FD EAW mandates that trust be placed

in the decisions of the issuing judicial authority, vindicated by reference to the joint obligation of

Member States to comply with fundamental rights obligations referred to under Article 6 TEU. Even

so, a number of Member States explicitly implemented Article 1(3) as grounds for non-execution.

211

In its 2014 legislative own-initiative resolution, the European Parliament called for 'a mandatory

refusal ground where there are substantial grounds to believe that the execution of the measure

would be incompatible with the executing Member State's obligation in accordance with Article 6

of the TEU and the Charter, notably Article 52(1) thereof with its reference to the principle of

proportionality'.

212

In the meantime there have been significant developments in the case law of the

CJEU regarding the interpretation of Article 1(3) FD EAW, de facto allowing executing judicial

authorities to refuse surrender on grounds of fundamental rights in 'exceptional cases'.

213

This case

law commenced in the area of prison conditions, but has since expanded to other alleged violations

of fundamental rights and the rule of law.

Detention conditions

EU action and cooperation in the area of detention conditions have taken place in a wider

framework, at United Nations and Council of Europe level.

214

However, EU Member States regularly

fail to comply with those standards. European Court of Human Rights judgments are not properly

executed and recommendations by specialised bodies established in accordance with UN and CoE

treaties are not implemented by Member States. At a certain point, judicial cooperation within the

EU had to be adapted to this reality. In its April 2016 judgment on the joined cases of Aranyosi and

Căldăraru,

215

the CJEU recalled that Article 51(1) of the Charter demands that Member States respect

the Charter when implementing EU law, including Article 4 regarding the prohibition of inhuman or

degrading treatment or punishment.

216

The Court established a two-pronged test for the executing judicial authority. Firstly, to consider

evidence with respect to deficient detention conditions in the issuing Member State generally, and

secondly, to consider the real risk of inhuman or degrading treatment of the requested person in

the event of his surrender to that Member State. If, following consultation with the issuing judicial

authority, the risk of such fundamental rights violation cannot be discounted within a reasonable

211

This was originally condemned by the Commission (see COM (2005) 63, p. 5). However, its third implementation report

strikes a different tone. See COM(2011) 175, p. 7: 'It is clear that the Council Framework Decision on the EAW (which

provides in Article 1(3) that Member States must respect fundamental rights and fundamental legal principles,

including Article 3 of the European Convention on Human Rights) does not mandate surrender where an executing

judicial authority is satisfied, taking into account all the circumstances of the case, that surrender would result in a

breach of the requested person's fundamental rights arising from unacceptable detention conditions'.

212

European Parliament resolution of 27 February 2014, with recommendations to the Commission on the review of the

European Arrest Warrant (2013/2109(INL)), P7_TA(2014)0174

, para. 7 (d).

213

CJEU judgment of 5 April 2016 joined Cases C-404/15 Aranyosi and C-659/15 PPU, Căldăraru, para. 78.

214

R. Raffaelli, Prison conditions in the Member States: selected European standards and best practices, Policy

Department C: Citizens' Rights and Constitutional Affairs European Parliament, 2017; W. van Ballegooij, The Cost of

non-Europe in the area of Procedural Rights and Detention Conditions, EPRS, December 2017, Chapter 1.1; Cf.

European Parliament resolution of 5 October 2017 on prison systems and conditions, P8_TA(2017)0385.

215

CJEU judgment of 5 April 2016, joined Cases C-404/15 Aranyosi and C-659/15 PPU, Căldăraru; W. van Ballegooij and P.

Bárd, 'Mutual recognition and individual rights; did the Court get it right?', in New Journal of European Criminal Law,

Vol. 4, 2016, pp. 439-464.

216

Ibid, para. 84.

EPRS | European Parliamentary Research Service

time, the executing judicial authority must decide whether the surrender procedure should be

brought to an end.

217

This case law was further refined in ML,

218

in the sense that the assessment should be limited to the

prisons in which the person that is subject to the EAW will be held.

219

When the issuing authority

provides information and assurance, the executing Member State has to rely on that assurance,

unless there are specific indications of inhuman or degrading treatment.

220

Caeiro criticises the use

of assurances as ‘hardly sufficient to provide an effective protection against ill-treatment, especially

in cases which presuppose, by definition, systemic or generalised deficiencies of such protection.’

221

In particular, he raises the question of whether the ECtHR would find such assurances acceptable

if they came from a non-EU state:

If the ECtHR faced a case where a non-EU State had provided reliable guarantees that the rights of

the detainee would be respected (no torture, no ill-treatment) in some prisons, but not necessarily in

other prisons to which he or she might be transferred in the course of the execution of the sentence,

would the decision to extradite comply with the Convention? Arguably it would not, because the

guarantees would not have effectively averted the risk of ill-treatment.

222

Caeiro therefore submits that ‘convergence with the criteria set by the ECtHR can only be ensured if

the CJEU allows the executing Member State to request from the issuing Member State

comprehensive assurances that bind the latter to always comply with Article 4 of the Charter while

dealing with that particular individual.’

223

In Dorobantu

224

the CJEU addressed further questions

regarding the minimum standards for detention conditions required under Article 4 of the Charter,

in particular the issue of personal space (in this case in a multi-occupancy cell). The Court held that

regarding the personal space available to each detainee, the executing judicial authority must, in

the absence, currently, of minimum standards in that respect under EU law, take account of the

minimum requirements under Article 3 of the ECHR, as interpreted by the ECHR.

225

With regard to

such potential minimum EU standards concerning detention conditions, the EPRS report on the cost

of non-Europe in the area of procedural rights and detention conditions assessed a number of

options for taking further action at EU level. It found that with regards to pre-trial detention, there

was sufficient evidence of the added value of potential EU action. Furthermore, it concluded that

common action was also justified in the area of post-trial detention, as judicial cooperation

measures, especially those involving the transfer of suspected and convicted persons, presumed

adequate detention conditions.

226

The debate regarding the scope of the EU to legislate under

217

Ibid, paras 85-104.

218

CJEU judgment of 25 July 2018, Case C-220/18 PPU, ML; TP Marguery, 'Towards the end of mutual trust? Prison

conditions in the context of the European Arrest Warrant and the transfer of prisoners framework decisions',

Maastricht Journal of European and Comparative Law, 25(6), 2019, pp. 704-717.

219

Ibid, para 87.

220

Ibid, para 112.

221

P.Caeiro, ‘Scenes from a Marriage’: Trust, Distrust and (Re)Assurances in the execution of a European Arrest Warrant,

in S. Carrera, D. Curtin and A. Geddes (Eds.), 20 years anniversary of the Tampere Programme, Europeanisation Dynamics

of the EU Area of Freedom, Security and Justice, European University Institute, 2020, p. 231-240, at p. 239.

222

P.Caeiro, ‘Scenes from a Marriage’: Trust, Distrust and (Re)Assurances in the execution of a European Arrest Warrant,

in S. Carrera, D. Curtin and A. Geddes (Eds.), 20 years anniversary of the Tampere Programme, Europeanisation Dynamics

of the EU Area of Freedom, Security and Justice, European University Institute, 2020, p. 231-240, at p. 239.

223

Ibidem, p. 240

224

CJEU judgment of 15 October 2019, Case C-128/18, Dorobantu.

225

Ibid, paras 70-79, 85.

226

W. van Ballegooij, The Cost of non-Europe in the area of Procedural Rights and Detention Conditions, EPRS,

December 2017, p. 42.

European Arrest Warrant

Article 82(2)(b) TFEU (what may be covered by the notion of ‘criminal procedure’?) and its added

value in terms of improvement of material detention conditions continues, as illustrated by the

opposing stances taken by Coventry

227

and Soo

228

on the matter. Martufi and Peristeridou, further

cautioning that ‘if the EU were to improve the rational use of pre-trial detention, ECHR standards

should not be considered adequate to ensure that pre-trial detention remains a measure of last

resort.’ They also offer specific guidance on the standard that prospective EU legislation should

reach.

229

Despite launching a green paper on detention in 2011,

230

the Commission has so far not proposed

any EU legislation in the area of (pre-trial) detention. It has undertaken various other initiatives to

improve detention conditions in the Member States. Under the justice programme, the Commission

has arranged various operating grants for organisations active in the field of prison management.

Since 2016, the Commission has provided a direct grant to the Council of Europe aimed at the

operation of a European forum of independent prison monitoring bodies, referred to as national

preventive mechanisms (NPMs).

231

The Commission is also working closely with the FRA on the

criminal detention database,

232

providing information on detention conditions in all 27 EU Member

States.

233

In December 2018 the Council adopted conclusions on 'Promoting mutual recognition by

enhancing mutual trust.'

234

Paragraph 5 of these conclusions encourages Member States to have

legislation in place that, where appropriate, allows for the utilisation of measures alternative to

detention in order to reduce the population in their detention facilities. In December 2019 the

Council adopted the aforementioned conclusions on alternatives to detention.

235

In these

conclusions the Member States are encouraged to continue their efforts to improve prison

conditions and to counter prison overcrowding.

236

Furthermore, they express support for continued

Commission funding for organisations active in the field of prison management and the European

forum of NPMs.

237

Fair trial, independent and impartial tribunals

The Commission has indicated that judicial cooperation in criminal matters, where individual rights

are directly at stake, cannot function when there are serious concerns regarding the independence

227

T. Coventry, ‘Pretrial detention: Assessing European Union Competence under Article 82(2) TFEU’ 8 New Journal of

European Criminal Law, vol 8, 2017, p. 43–63.

228

A. Soo, ’Common standards for detention and prison conditions in the EU: recommendations and the need for

legislative measures’, ERA Forum 20, (2020), p. 327–341.

229

A. Martufi A., Peristeridou C. ‘The purposes of pre-trial detention and the quest for alternatives’ in European Journal of

Crime, Criminal Law and Criminal Justice, 28(2), 2020, to be published, at. p 15

230

European Commission, Strengthening mutual trust in the European judicial area – A Green Paper on the application

of EU criminal justice legislation in the field of detention, COM (2011) 327 of 14 June 2011.

231

Council of Europe, human rights national implementation.

232

FRA, Criminal detention in the EU.

233

Answer to European Parliamentary question E-003096/2019 (Prison conditions in the EU and follow-up to the own-

initiative report on prison systems and conditions).

234

Council conclusions on mutual recognition in criminal matters – 'Promoting mutual recognition by enhancing mutual

trust', OJ C 449, 13.12.2018, pp. 6-9.

235

Council conclusions on alternative measures to detention: the use of non-custodial sanctions and measures in the

field of criminal justice, OJ C 422 of 16 December 2019, pp. 9-13.

236

Council conclusions on alternative measures to detention: the use of non-custodial sanctions and measures in the

field of criminal justice, OJ C 422 of 16 December 2019, pp. 9-13, actions to be taken at national level, point 13.

237

Ibid, actions to be taken at EU level, point 7; actions to be taken to enhance cooperation with the Council of Europe

and other relevant organisations, point 2.

EPRS | European Parliamentary Research Service

of judicial authorities.

238

In LM

239

such serious concerns were the subject of preliminary questions

raised by an Irish executing judicial authority in the context of an EAW issued by a Polish judicial

authority. In its judgment, the CJEU subsequently extended its two-pronged 'Aranyosi test' to

possible violations of the right to a fair trial, the essence of which includes the requirement that

tribunals be independent and impartial.

240

In accordance with this judgment, even if the Member

State concerned is subject to the Article 7(1) TEU procedure due to 'a clear risk of a serious br each of

EU values' – currently the case for both Poland

241

and Hungary

242

– or the Article 7(2) TEU procedure

to 'determine the existence of a serious and persistent breach of EU values' by a Member State,

243

the executing judicial authority will still need to assess whether in the case at hand there are

substantial grounds for believing that the requested suspect will run the real risk of being subject

to a breach of the essence of the right to a fair trial.

244

In the national follow-up to LM, the Supreme

Court of Ireland, after underlining the difficulty of applying the second prong of the test laid down

by the CJEU,

245

held that the threshold of evidence pointing to such a real risk had not been

reached.

246

Hence the appeal against surrender was dismissed.

247

However, as reported by Wahl,

248

more recently, the Higher Regional Court of Karlsruhe set aside an EAW against a Polish national

who was to be surrendered to Poland for the purpose of criminal prosecution. The court argued that

a fair trial for the requested person was not guaranteed in Poland following recent reforms that had

an impact on the disciplinary regime of the judiciary in Poland.

249

The Karlsruhe approach was also

picked up in a series of interim rulings by the District Court of Amsterdam.

250

238

Communication from the Commission to the European Parliament and the Council, A new EU framework to

strengthen the rule of law, COM (2014) 158 of 19 March 2014, p. 2.

239

CJEU judgment of 25 July 2018 in Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586

240

Ibid, paras 47, 48.

241

Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of

the rule of law, COM(2017) 835

of 20 December 2017.

242

European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant

to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the

values on which the Union is founded, P8_TA(2018)0340.

243

Ibid, paras 71,72; criticized by P. Bárd and W. van Ballegooij, 'Judicial independence as a precondition for mutual trust?

The CJEU in Minister for Justice and Equality v LM', in: New Journal of European Criminal Law, 2018/3, p. 353–365, at p.

361: ‘making suspension of mutual trust dependent on the sanctioning prong of Article 7 TEU is a reading of the FD

EAW that can easily be contested. It disregards the historical evolution of Article 7 TEU. The reason Recital (10) to the

FD EAW is silent about current Article 7(1) TEU is that it did not exist at the time this framework decision had been

drafted. Since a preventive arm has been added in the meantime, one could argue that the drafters of the FD EAW

intended to refer to Article 7 as such and the preventive arm should also be read into Recital (10). Such an

interpretation would have been preferable in the light of the inherent asymmetry between the individual and the

state, especially in the area of criminal law.’

244

Ibid, para 68.

245

Supreme Court of Ireland of 12 November 2019, Minister for Justice & Equality v Celmer [2019] IESC 80, paras 81-83.

246

Ibid, paras 84-87.

247

Ibid, Minister for Justice & Equality v Celmer [2019] IESC 80, para. 88.

248

T. Wahl, Fair Trial Concerns: German Court Suspends Execution of Polish EAW, EUCRIM, 2 April 2020.

249

Higher Regional Court of Karlsruhe, decision of 17 February 2020, https://oberlandesgericht-karlsruhe.justiz-

bw.de/pb/,Lde/6096769/;

250

District Court of Amsterdam in ECLI:NL:RBAMS:2020:1896, 24 March 2020; ECLI:NL:RBAMS:2020:1931, 24 March 2020

and ECLI:NL:RBAMS:2020:2008, 26 March 2020 P. Bárd, J. Morijn, ‘

Domestic Courts Pushing for a Workable Test to

Protect the Rule of Law in the EU: Decoding the Amsterdam and Karlsruhe Courts’ post-LM Rulings (Part II)’,

Verfassungsblog, April 19, 2020.

European Arrest Warrant

This line of CJEU case law is related to EU efforts in the area of the enforcement of EU values, which

cover fundamental rights, including the right to independent and impartial tribunals.

251

The

European Parliament has called for an interinstitutional agreement on an EU monitoring and

enforcement mechanism on democracy, the rule of law and fundamental rights.

252

The Commission

is now willing to engage in a 'rule of law review cycle',

253

culminating in an 'Annual Rule of Law

Report'

254

covering all Member States. Commission President Ursula von der Leyen has tasked Věra

Jourová, Vice-President for Values, Transparency, and Didier Reynders, Commissioner for Justice,

with the development of a 'comprehensive European rule of law mechanism', including an annual

report monitoring the situation in every Member State. The first annual report is expected in

September 2020.

255

The Commission has made a significant step towards Parliament's position.

However, four key differences in their approach remain. These notably relate to what is assessed, by

whom and which follow-up is to be provided.

256

2.2.7. Relationship with third states, notably Schengen countries and the UK

As discussed below, the interaction between the EAW and extradition relations with third states

demonstrates the advanced nature of the mechanism. The relationship with third states has been

shaped by CJEU case law,

257

notably in the Petruhhin case,

258

discussing what a Member State must

do when it receives an extradition request from a third country related to the prosecution of a Union

citizen who is a national of another Member State. In the absence of rules of EU law governing

extradition between the Member States and that third state, it is necessary, in order to safeguard EU

nationals from measures liable to deprive them of the rights of free movement and residence

provided for in Article 21 TFEU, while combatting impunity in respect of criminal offences, to apply

all the cooperation and mutual assistance mechanisms provided for in the criminal field under EU

law.

259

The requested Member State must exchange information with the EU Member State of which

the person is a national. It must give that other EU Member State the opportunity to exercise its

jurisdiction to prosecute offences of its own nationals. Finally, it must give priority to a po t ential

EAW of that Member State over the extradition request of the third country.

260

In Raugevicius

261

similar logic was applied as regards an extradition request by a third country for the execution of a

sentence of an EU citizen that had exercised their right to free movement. In this case the requested

251

Article 2 TEU.

252

European Parliament resolution of 25 October 2016 with recommendations to the Commission on the establishment

of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)); W van Ballegooij and

T Evas, An EU mechanism on democracy, the rule of law and fundamental rights: European Added Value Assessment

accompanying the Parliament's Legislative Initiative Report, EPRS, European Parliament, 2016; Annex I, The

establishment of an EU mechanism on democracy the rule of law and fundamental rights' by L. Pech, E. Wennerström,

V. Leigh, A. Markowska, L.De Keyser, A. Gómez Rojo and H. Spanikova,; Annex II, 'Assessing the need and possibilities

for the establishment of an EU scoreboard on democracy, the rule of law and fundamental rights' by P. Bárd, S. Carrera,

E. Guild and D. Kochenov, with a thematic contribution by W. Marneffe.

253

COM (2019) 343, p. 9.

254

COM (2019) 343, p. 11.

255

Commission work programme, COM (2020) 37 final, p. 8.

256

W. van Ballegooij, European added value of an EU mechanism on democracy, the rule of law and fundamental rights

- Preliminary assessment, EPRS, European Parliament, 2020.

257

For a wider discussion of CJEU case law in this area see M.J. Costa, Extradition Law, Reviewing Grounds for Refusal from

the Classic Paradigm to Mutual Recognition and Beyond, European Criminal Justice series, Vol. 2, Brill Nijhoff, 2019,

chapter 4.

258

CJEU of 6 September 2016 in Case C-182/15, Petruhhin ECLI:EU:C:2016:630

259

Ibidem, para. 47

260

Ibidem, para. 48, 49.

261

CJEU of 13 November 2018 in Case C-247/17, Raugevicius ECLI:EU:C:2018:898

EPRS | European Parliamentary Research Service

Member State, whose national law prohibits the extradition of its own nationals out of the European

Union for the purpose of enforcing a sentence, and makes provision for the possibility that such a

sentence pronounced abroad may be served on its territory, is required to ensure that that EU

citizen, provided that he resides permanently in its territory, receives the same treatment as that

accorded to its own nationals in relation to extradition.

262

This case law underlines the enduring

sensitivities that surround the extradition of nationals and resident EU citizens to third states. This is

also a sticking point in negotiations for extradition agreements between the EU and third states as

illustrated in table 1 below. In particular, in this table a number of important aspects of the FD EAW

are compared with the agreement the EU, Norway and Iceland signed an on the surrender

procedure between them in 2006,

263

as well as a potential EU-UK agreement, on the basis of the

relevant sections of the draft text of the agreement on the new partnership with the UK published

by the European Commission on 18 March 2020, taking into account that this represents the EU’s

current negotiation position.

264

The UK's draft text, published more recently, has significant

differences to that of the Commission. Whilst public comment on the negotiations to date has

largely focused on trade issues, it is apparent that work is still needed to bring the two sides together

in the area of judicial cooperation in criminal matters.

265

Table 1: EU extradition agreements with third states compared with the FD EAW

Regimes FD EAW

EU-Norway/Iceland

Agreement

Potential EU-UK

Partnership Agreement

Basis for cooperation

AFSJ, compliance with

EU values and

fundamental rights

Schengen cooperation

ECHR+ CoE data

protection standards

Security Partnership,

Democracy, rule of law,

human rights, ECHR+

procedural rights and

data protection

standards

Recourse to Schengen

Information System

Yes Yes

No (recourse to

Interpol)

Between judicial

authorities

Yes

Depends on

declarations

Yes

Time limits for taking

the decision

Yes

Depends on

declarations

Will depend on

declarations

262

Ibidem, para. 50.

263

Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender

procedure between the Member States of the European Union and Iceland and Norway, OJ L 292/2 of 21 October

2006.

264

European Commission, Draft text of the Agreement on the New Partnership with the United Kingdom , 18 March 2020,

parts III (Security Partnership), chapter 1 & 7, in particular; For a comparison with the ECE and EU-US extradition

agreement see

S. Carrera, V. Mitselegas, M. Stefan, F. Giuffrida, Towards a principled and trust-based partnership,

Criminal justice and Police cooperation between the EU and the UK after Brexit, CEPS, 2018, p. 148.

265

UK draft working text for an agreement on law enforcement and judicial cooperation in criminal matters, 18 May 2020.

European Arrest Warrant

No verification double

criminality serious

crimes

Yes

Depends on

declarations

Will depend on

declarations

No ban on extradition

of own nationals

Yes

Depends on

declarations

Will depend on

declarations

Interpretation

application

CJEU

Dispute settlement+

mutual transmission

case law

Partnership council,

Arbitration Tribunal

Source: author’s own elaboration

Basis for cooperation

As discussed in Section 1.1.1. and 1.1.2., the basis for the FD EAW was the establishment of the AFSJ

and the decision to develop it by means of mutual recognition of judicial decisions. As discussed in

Section 2.6., this method was deemed appropriate in view of the trust in Member States’ com pliance

with EU values and fundamental rights. Norway and Iceland are both part of the Schengen Area.

266

The preamble

267

to the EU Norway/Iceland agreement furthermore expresses confidence in the

ability and willingness of all contracting parties to guarantee the right to a fair trial and to respect

the ECHR and the CoE Convention for the protection of individuals with regards to automatic

processing of personal data.

268

Moreover, since 2012 Denmark, Sweden, Norway, Finland and

Iceland operate their own Nordic Arrest Warrant system between them that further simplifies and

facilitates surrender procedures in accordance with article 31(2) FD EAW.

269

The UK left the European Union on 31 January 2020. At the time of writing we are in a ‘transitional

period’ until the end of 2020. During this period the UK and EU Member States can continue to use

the EAW, provided that the process is initiated before the end of the transitional period. However,

Article 185 of the Withdrawal agreement

270

allows EU Member States to declare that, during the

transition period, their executing judicial authorities may refuse to surrender nationals of that

Member State to the UK. In this case the UK is allowed to take reciprocal action. Germany, Austria

and Slovenia have availed themselves of this possibility.

271

This testifies to the sensitivity of the

matter from a constitutional and political perspective. The EU and the UK are currently negotiating

a new relationship.

272

This includes criminal justice cooperation, under the heading of a ‘secur ity

266

European Commission, Schengen Area.

267

EU-Norway-Iceland Surrender Agreement preamble.

268

Convention for the Protection of Individuals with regards to Automatic Processing of Personal Data, E.T.S. No 108,

Strasbourg, 28 January 1981

269

Convention of 15.12.2005 on surrender on the basis of an offence between the Nordic States (The Nordic Arrest

Warrant); A. Suominen, ‘The Nordic European Arrest Warrant Finally in Force’, European Criminal Law Review, 2014,

p. 41-45; Trust issues, the Arrest Warrant system from a Nordic perspective

, EJTN, 2018

270

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union

and the European Atomic Energy Community, OJ L 29/7 of 31 January 2020, article 185.

271

Declaration by the European Union made in accordance with the third paragraph of Article 185 of the Agreement on

the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the

European Atomic Energy Community, Council doc. XT 21011/20 of 28 January 2020.

272

For a general background see C. Cirlig, The future partnership between the European Union and the United Kingdom,

Negotiating a framework for relations after Brexit, EPRS, 2018.

EPRS | European Parliamentary Research Service

partnership’.

273

The EU’s draft negotiating mandate specifies that ‘the security partnership should

ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its

legal order and take account of the fact that a third country cannot enjoy the same rights and

benefits as a Member State.’

274

Furthermore, ‘the envisaged partnership should be underpinned by

commitments to respect fundamental rights. In this context, the envisaged partnership should

provide for automatic termination of the law enforcement cooperation and judicial cooperation in

criminal matters if the United Kingdom were to denounce the ECHR. It should also provide for

automatic suspension if the United Kingdom were to abrogate domestic law giving effect to the

ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the

United Kingdom’s courts.’

275

Moreover, ‘The security partnership should also provide for judicial

guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also

lay down appropriate grounds for refusal of a request for cooperation, including where such request

concerns a person who has been finally convicted or acquitted for the same facts in a Member State

or the United Kingdom.’

276

Also, the draft text of the agreement on the new partnership with the UK

published by the European Commission on 18 March 2020 clarifies that cooperation depends on

adequate data protection standards in the area of policing and criminal justice.

277

Finally, the draft

text of the agreement on the new partnership with the UK published by the European Commission

on 18 March 2020 also contains an article expressing a commitment to democracy, the rule of law

and human rights as a basis for cooperation.

278

Recourse to the Schengen Information System

As discussed in Section 2.1., SIS may be used to issue alerts and transmit EAWs. The only third

countries that have thus far been provided access to SIS, namely Iceland, Liechtenstein, Norway and

Switzerland, are members of the Schengen area.

279

Consequently, the EU- Norway/Iceland

agreement allows these countries to make use of SIS as well.

280

The UK currently operates SIS but,

as it has chosen not to join the Schengen area, it cannot issue or access Schengen-wide alerts for

refusing entry and stay into the Schengen area.

281

However, in accordance with the draft text of the

273

Ibidem, section 5.3.2.; S. Carrera, V. Mitselegas, M. Stefan, F. Giuffrida, Towards a principled and trust-based partnership,

Criminal justice and Police cooperation between the EU and the UK after Brexit, CEPS, 2018, in particular chapter 3 on

UK participation in EU mutual recognition instruments and future options.

274

Recommendation for a Council decision authorising the opening of negotiations for a new partnership with the United

Kingdom of Great Britain and Northern Ireland, COM(2020) 35 final of 3 February 2020, para. 112.

275

Ibidem, para. 113.

276

Ibidem, para. 113.

277

European Commission, Draft text of the Agreement on the New Partnership with the United Kingdom , 18 March 2020,

Article LAW.OTHER.136: Suspension and disapplication: 6. In case the Decision taken in accordance with Article 36 of

Directive (EU) 2016/680 is either repealed or suspended by the Commission or declared invalid by the Court of Justice

of the EU, all provisions of this Title shall be suspended; Directive (EU) 2016/680 of the European Parliament and of

the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by

competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences

or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework

Decision 2008/977/JHA, OJ L 119/89 of 4 May 2016, Article 36 (Transfers on the basis of an adequacy decision).

278

Draft text of the Agreement on the New Partnership with the United Kingdom, part one (common provisions), title

II(basis for cooperation), Article COMPROV.4: Democracy, rule of law and human rights.

279

S. Carrera, V. Mitselegas, M. Stefan, F. Giuffrida, Towards a principled and trust-based partnership, Criminal justice and

Police cooperation between the EU and the UK after Brexit, CEPS, 2018, p. 123.

280

EU-Norway-Iceland Surrender Agreement, articles 12, 13.

281

European Commission, Schengen Information System.

European Arrest Warrant

agreement on the new partnership with the UK, such access would no longer be offered, and the

UK would have to rely on the International Criminal Police Organisation (“Interpol”) instead.

282

Between judicial authorities

As discussed in Section 2.1.1., one of the main innovations of the FD EAW has been that surrender

procedures exclusively take place between judicial authorities. Article 9 of the EU-Nor wa y /Iceland

agreement follows that logic as far as issuing judicial authorities are concerned. However, it offers

the option for state parties to notify that the Ministry of Justice is their executing judicial authority.

283

The draft text of the agreement on the new partnership with the UK defines a “judicial authority” as

a judge, a court or a prosecutor.

284

Time limits

As discussed in Section 2.2. and 2.2.1. the FD EAW contains a number of time limits, the main one

being that in situations where the wanted person objects to their surrender, Member States have to

foresee a surrender procedure for EAWs to be completed within 60 days, with an optional extension

of 30 days.

285

These time limits are replicated in Article 20 of the EU-Norway-Iceland Agreement.

However, Article 20(3) allows the EU (on behalf of any of its Member States) to issue a declaration

indicating in which cases paragraphs 3 and 4 will not apply. Norway and Iceland may apply

reciprocity in relation to the Member States concerned. The draft text of the agreement on the new

partnership with the UK contains a similar provision.

286

No verification double criminality serious crimes

As discussed in Section 2.2.2 the FD EAW contains an exception to the double criminality

requirement, which is laid down in Article 2(2) FD EAW. For 32 offences (a 'positive list') there is only

a single qualified criminality requirement (the acts should be punishable by deprivation of liberties of

at least three years in the issuing Member State). If this condition is fulfilled the warrant gives rise to

surrender 'without verification of the double criminality of the act'. In the EU-Nor way /Iceland

agreement, dual criminality is required as a condition of extradition, unless Norway or Iceland on

the one hand, or the EU on behalf of the Member States on the other, make a declaration that it does

not require dual criminality if the offence is a ‘serious offence’ listed in Article 3(4) and carries a

penalty of at least three years’ imprisonment in the requesting state. The agreement provides that

such declaration may lead to reciprocal measures by the other party. The draft text of the agreement

on the new partnership with the UK contains a similar provision.

287

No ban on extradition of own nationals

As discussed in Section 2.2.3. another major innovation of the FD EAW is that it enables the surrender

of nationals for prosecution purposes with a return guarantee ex. Article 5(3) FD EAW, as well as the

surrender for the execution of a sentence, which, however, may be refused in accordance with

article 4(6) FD EAW in view of the alternative option to execute the sentence in the Member State of

nationality. Article 7(1) of the EU-Norway/Iceland agreement also enables the surrender of nationals.

282

Draft text of the Agreement on the New Partnership with the UK, Article LAW.SURR.88: Detailed procedures for

transmitting an arrest warrant, para 2: The issuing judicial authority may call on the International Criminal Police

Organisation (“Interpol

”) to transmit an arrest warrant.

283

Article 9 (2).

284

Draft text of the Agreement on the New Partnership with the UK, Article LAW.SURR.77: Definitions

285

FD EAW, Article 17(3) and (4).

286

Draft text of the Agreement on the New Partnership with the UK, Article LAW.SURR.96: Time limits and procedures for

the decision to execute the arrest warrant.

287

Draft text of the Agreement on the New Partnership with the UK, Article LAW.SURR.78: Scope

EPRS | European Parliamentary Research Service

However, again in accordance with Article 7(2), a declaration may be made that nationals will not

be surrendered or that surrender will be authorised only under certain specified conditions. The

draft text of the agreement on the new partnership with the UK follows the same logic.

288

discussed above, a number of EU Member States have already declared they will no longer surrender

their nationals to the UK during the transitional period.

Interpretation application

Since the end of the 5-year transitional period after the entry into force of the Lisbon Treaty, the

CJEU has had full jurisdiction over the area of police and judicial cooperation in criminal matters.

289

This includes the FD EAW. The EU-Norway/Iceland agreement contains a political dispute

settlement clause regarding the interpretation and application of the agreement

290

as well as a

mechanism allowing for the mutual transmission of CJEU and Icelandic and Norwegian EAW case

law.

291

The draft text of the agreement on the new partnership with the UK contains a political

dispute settlement procedure in the context of a ‘Partnership council’,

292

followed in case of a

persisting disagreement by a procedure in front of an ‘Arbitration Tribunal’.

293

Questions of

interpretation or application of a concept of Union law contained in the agreement s hould however

be referred to the CJEU. Its ruling shall be binding on the arbitration tribunal.

294

Conclusion

As shown by the EU-Norway/Iceland agreement and the draft text of the partnership agreement,

whatever the outcome the negotiations between the EU and the UK,

295

the resulting extradition

arrangements will be less ambitious than the EAW. Generally, international agreements allow the

contracting parties to enter declarations and notifications. The list related to the EU-Norway/Iceland

agreement

296

shows how this can lead to a complicated web of relations between the individual

states concerned. Furthermore, the EU and the UK no longer share a common legal area (the AFSJ)

in which there may be mutual recognition on the basis of mutual trust reinforced by the jurisdiction

of the CJEU. Instead, there will have to be verifiable trust on the basis of compliance with

international fundamental rights obligations (the ECHR) and equivalent protection to that offered

288

Draft text of the Agreement on the New Partnership with the UK, Article LAW.SURR.82: Nationality exception

289

Consolidated version of the Treaty on European Union, Protocol (No 36) on transitional provisions, OJ 115 / 322 of 09

May 2008.

290

EU, Iceland and Norway Surrender Agreement, Article 36.

291

Ibidem, Article 37.

292

Draft text of the Agreement on the New Partnership with the UK, Article INST.13: Consultations in the framework of the

Partnership Council

293

Draft text of the Agreement on the New Partnership with the UK, Article INST.13: Consultations in the framework of the

Partnership Council, Article INST.15: Arbitration procedure.

294

Draft text of the Agreement on the New Partnership with the UK, Article INST.16: Disputes raising questions of Union

law: ‘1. Where a dispute submitted to arbitration raises a question of interpretation or application of a concept of

Union law contained in this Agreement or any supplementing agreement, or of a provision of Union law referred to

in this Agreement or any supplementing agreement, the arbitration tribunal shall not decide on any such question.

In such case, it shall request the Court of Justice of the European Union to give a ruling on the question. The Court of

Justice of the European Union shall have jurisdiction to give such a ruling which shall be binding on the arbitration

tribunal

295

Cf. J. Dawson, Brexit, next steps: the European Arrest Warrant, House of Commons Library, February 20, 2020.

296

Notifications and declarations concerning Agreement of 28 June 2006 between the European Union and the Republic

of Iceland and the Kingdom of Norway on the surrender procedure, Council doc. 5638/1/20 REV 1

of 12 March 2020.

European Arrest Warrant

by the EU Directives approximating suspects’ rights (see infra section 2.3).

297

With regards to the

latter, it is interesting to notice how the draft text of the agreement published in March 2020 contains a

number of provisions on suspects’ rights

298

that the UK had not opted in to

299

prior to Brexit, notably

deriving from the Directive on Access to a Lawyer

300

and the Directive on the Rights of Children.

301

Carrera, Mitselegas et al already pointed out, ‘the UK’s willingness to continue to reap the security

benefits of EU cooperation may be contingent on the UK complying with the EU acquis, including

the acquis on the protection of fundamental rights, part of which it is currently [written before

Brexit] at liberty to disregard under its opt-outs’

302

At the same time, this raises questions regarding

the position of Ireland and Denmark, which still do not participate in (all) procedural rights measures

due to the application of their respective protocols to the Lisbon Treaty.

303

2.3. The impact of EAWs on the rights of individuals in the Member

States

On the basis of the FD EAW

The Commission proposal for a FD EAW already recognised the need 'to improve the overall context'

by at least partially harmonising the procedural rights of wanted persons, particularly regarding

access to a lawyer and an interpreter, conditional release of the surrendered person in the executing

Member State and conditions for the execution of sentences following a trial in which the suspect

was not present (in absentia).

304

The European Parliament's opinion even called for legal assistance

to be free of charge in cases where the requested person had insufficient means.

305

In the end,

Article 11 of the FD states that the requested person has a right to be informed of the EAW and its

contents, as well as a right to be assisted by a legal counsel and an interpreter in accordance with

the national law of the executing Member State. Article 12 FD EAW contains a right to provisional

release in accordance with the domestic law of the executing Member State. In accordance with

Articles 14 and 19 FD EAW, where the arrested person does not consent to his or her surrender, he

or she shall be entitled to be heard by the executing judicial authority, in accordance with the law

of the executing Member State.

297

Cf. P. Bárd, ‘The effect of Brexit on European Arrest Warrants’, CEPS Paper in Liberty and Security in Europe 2018/2, A pril

2018, p. 5: ‘In order to maintain trust between the two entities, the Charter and procedural guarantees should be

binding also on the UK.’

298

Draft text of the Agreement on the New Partnership with the UK, Article INST.13: Consultations in the framework of the

Partnership Council Article LAW.SURR.89: Rights of a requested person, Article LAW.SURR.90 Rights of a requested

person who is a child.

299

Consolidated version of the Treaty on the Functioning of the European Union, Protocol No. 21 OJ C 202/295 of 7 June

2016.

300

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013,

pp. 1-12), Article 10 (1), (2) and (3).

301

Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for

children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1).

302

S. Carrera, V. Mitselegas, M. Stefan, F. Giuffrida, Towards a principled and trust-based partnership, Criminal justice and

Police cooperation between the EU and the UK after Brexit, CEPS, 2018, p. v.

303

Consolidated version of the Treaty on the Functioning of the European Union, Protocol No. 21 OJ C 202/295 of 7 June

2016; Protocol No. 22, OJ C 202/ 298 of 7 June 2016

304

Proposal for a Council framework decision on the European arrest warrant and the surrender procedures between the

Member States, COM (2001) 522 final of 19 September 2001.

305

European Parliament legislative resolution of 29 November 2001 on the proposal for a Council Framework Decision

on the European Arrest Warrant and the surrender procedures between the Member States, 2002 OJ (C 153E) 276 of

27 June 2002.

EPRS | European Parliamentary Research Service

On the basis of other secondary EU legislation

In its policy documents the European Commission has always stressed the relationship between

mutual recognition and the necessary approximation.

306

In this vein, the 2004 Commission proposal

was aimed at setting common minimum standards at EU level regarding the basic fair trial rights of

suspects or accused persons.

307

This initiative however failed in the Council, owing to cost and

subsidiarity considerations. The Commission and Member States then agreed to an alternative

approach. This consisted of a 'roadmap',

308

in accordance with which the rights of suspects would

be harmonised in several individual instruments. Since 2009, directives have been adopted on the

rights to interpretation and translation, information, access to a lawyer and on the rights to

communicate upon arrest, the presumption of innocence, special safeguards for children suspected

or accused of crime, and the right to legal aid.

309

These directives also apply to wanted persons in

European Arrest Warrant procedures, thereby strengthening the rights contained in the FD EAW:

The Interpretation and Translation Directive provides for interpretation during the

surrender procedure in the executing Member State and translation of the EAW.

310

The Directive on Information in criminal proceedings requires that any person who is

arrested for the purpose of the execution of a European Arrest Warrant should promptly

receive an appropriate letter of rights containing information on her or his rights

according to the national law implementing the FD EAW in the executing Member

State.

311

The Directive on Access to a Lawyer provides that a requested person has a right of

access to a lawyer in the executing Member State upon arrest pursuant to an EAW.

312

The requested person also has the right to appoint a lawyer in the issuing Member

States to provide the lawyer in the executing Member States with information and

advice with a view to the effective exercise of the rights of requested persons laid down

in the FD EAW.

313

The person also has the right to have a third person informed of the

deprivation of liberty,

314

the right to communicate with third persons

315

and the right to

communicate with consular authorities.

316

306

Communication from the Commission to the Council and the European Parliament, Mutual recognition of final

decisions in criminal matters, COM (2000) 495 final of 26 July 2000, p. 16.

307

Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the

European Union, COM (2004) 328 final of 28 April 2004.

308

Council document 14552/1/09 of 21 October 2009.

309,

309

For a more detailed discussion see W. van Ballegooij, The Cost of non-Europe in the area of Procedural Rights and

Detention Conditions, EPRS, December 2017, Chapter 1.2.2.

310

Directive 2010/64/EU on the Right to Interpretation and Translation (OJ L 280, 26 October 2010, p. 1-7), Article 2(7),

3(6).

311

Directive 2012/13/EU on the Right to Information in criminal proceedings (OJ L 142, 1June2012, p. 1-10), Article 5.

312

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013,

pp. 1-12), Article 10 (1), (2) and (3).

313

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013, pp. 1-

12), Article 10 (4) (5) (6).

314

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013, pp. 1-

12), Article 5.

315

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013, pp. 1-

12), Article 6.

316

Directive 2013/48/EU on the Right of Access to a Lawyer in criminal proceedings (OJ L 294, 6 November 2013, pp. 1-

12), Article 7.

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The Directive on the Rights of Children

317

provides specific safeguards for children (=

those under the age of 18) that are over the age of criminal responsibility who are

subject to EAW procedures, such as (a) the right to information; (b) the right to have the

holder of parental responsibility informed; (c) the right to be assisted by a lawyer; (d) the

right to a medical examination; (e) the right to specific treatment in case of deprivation

of liberty; (f) the right to protection of privacy; and (g) the right to be accompanied by

the holder of parental responsibility during the proceedings.

The Directive on Legal Aid

318

also covers legal aid in European arrest warrant

proceedings, both in the issuing and executing Member State.

319

The directive

furthermore contains provisions related to the quality of legal aid and professional

training of staff involved in the decision-making, and of the lawyers providing legal aid

services.

320

Transposition and implementation concerning several directives

Based on prior EPRS research

321

and Commission reports on the application of the directives on

interpretation and translation,

322

the right to information

323

and access to a lawyer

324

together with

the FRA studies regarding procedural rights

325

and detention conditions,

326

the tentative conclusion

may be drawn that the transposition and implementation of the relevant provisions concerning the

EAW in the above-mentioned first three first 'roadmap' directives has been inadequate to date.

Some elements of the relevant data are reproduced below.

Almost all Member States have correctly transposed the requirements for interpretation in

proceedings for the execution of an EAW and ensure that a translation of the EAW is provided.

327

Furthermore, a majority of Member States ensure that the requested person promptly receives an

appropriate letter of rights containing information on her or his rights, with most Member States

having letters drafted in simple and accessible language. The Commission report expresses the

concern however that several Member States lack a separate provision regulating the obligation to

317

Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for

children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1).

318

Directive 2016/1919 (OJ L 297, 4 November 2016, p. 1).

319

Ibid, Article 5.

320

Ibid, Article 7.

321

W. van Ballegooij, The Cost of non-Europe in the area of Procedural Rights and Detention Conditions, EPRS,

December 2017.

322

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and

translation in criminal proceedings, COM(2018) 857 final of 18 December 2018.

323

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal

proceedings, COM (2018)858 final of 18 December 2018.

324

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2013/48/EU of the European Parliament and of the Council of 22 October 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 person informed

upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of

liberty, COM(2019) 560 final

of 26 September 2019.

325

Rights in practice: access to a lawyer and procedural rights in criminal proceedings and European Arrest Warrant

proceedings, FRA, September 2019.

326

Criminal detention in the EU, rules and reality, FRA, December 2019.

327

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and

translation in criminal proceedings, COM(2018) 857 final of 18 December 2018, p. 7, 9.

EPRS | European Parliamentary Research Service

provide information on the rights of suspects and accused persons in EAW proceedings.

328

The FRA

study regarding procedural rights

329

finds that in EAW cases, language barriers frequently impede

individuals' ability to benefit from their right to information and that requested persons often

misunderstand such information, resulting in them making decisions that are contrary to their

interests.

330

In the context of the implementation of the Directive on Access to a Lawyer, 21 Member States

provide the requested person with a right of access to a lawyer upon arrest pursuant to an EAW.

331

The Commission furthermore finds that the 'legislation in four Member States does not all reflect

the right of requested persons to appoint a lawyer in the issuing Member State'

332

and in its

conclusions mention it as a key provision with which there are still difficulties.

333

Finally, most

Member States also cross-refer in their legislation on EAW proceedings to rules on criminal

proceedings governing the rights of suspects and accused persons.

334

The FRA study regarding

procedural rights equally finds that Member States do not effectively provide requested persons

with information about their rights to access a lawyer in the issuing Member State.

335

328

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal

proceedings, COM (2018)858 final of 18 December 2018, p. 10, 11.

329

Rights in practice: access to a lawyer and procedural rights in criminal proceedings and European Arrest Warrant

proceedings, FRA, September 2019.

330

Ibidem, p. 14.

331

Report from the Commission to the European Parliament and the Council on the implementation of Directive

2013/48/EU of the European Parliament and of the Council of 22 October 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 person informed

upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of

liberty, COM(2019) 560 final

of 26 September 2019, p. 20.

332

Ibidem, p. 17.

333

Ibidem, p. 20.

334

Ibidem, p. 17.

335

Rights in practice: access to a lawyer and procedural rights in criminal proceedings and European Arrest Warrant

proceedings, FRA, September 2019.

European Arrest Warrant

3. Assessment and conclusions as regards the

implementation of the EAW in the Member States

The Commission's better regulation guidelines establish a set of evaluation criteria against which

EU interventions are to be assessed.

336

The following criteria set out in the accompanying better

regulation toolbox will provide the basis for the assessment undertaken here: effectiveness,

efficiency, coherence, relevance and EU added value.

337

Effectiveness refers to the degree to which

an action achieves or progresses towards its objectives. Efficiency considers the relationship

between the resources used by an intervention and the changes generated by the intervention.

Coherence involves looking at how well or not different actions work together. It may highlight

areas where there are synergies which improve overall performance, or which were perhaps not

possible if introduced at national level; or it may point to tensions such as objectives which are

potentially contradictory or approaches which are causing inefficiencies. Relevance looks at the

relationship between the needs and problems in society and the objectives of the intervention and

hence touches on aspects of design. Relevance analysis also requires a consideration of how the

objectives of an EU intervention (legislative or spending measure) correspond to wider EU policy

goals and priorities. EU-added value looks for changes which it can reasonably be argued are due to

the EU intervention, over and above what could reasonably have been expected from national

actions by the Member States. In many ways, the evaluation of EU added value brings together the

findings of the other criteria, presenting the arguments on causality and drawing conclusions, based

on the evidence to hand, about the performance of the EU intervention.

338

It should be pointed out that a comprehensive evaluation of the EU’s security policies is lacking,

339

and there has been no separate evaluation of EU criminal justice policies. The Commission did,

however, conduct a comprehensive assessment on EU security policies in 2017, which may be

viewed as a positive first step.

340

Figure 5 below illustrates the five key evaluation criteria and how

they interrelate. One should however take into account the specific nature of European

implementation assessments produced by EPRS. As opposed to the Commission evaluations, they

are produced over a shorter period of time and tailored to meet parliamentarians' needs, notably by

focusing on the practical application of the EU measure.

341

The temporal and substantive scope and methodology of this European implementation

assessment were discussed in section 1.2. In this regard, and given the particular impact arrest,

detention and surrender has on fundamental rights, a special question on fundamental rights was

added to the questions posed to interviewees reproduced in Annex II.

342

Furthermore, a question

was included on compliance with EU values in the light of CJEU case law on the interaction between

336

European Commission, Better Regulation guidelines and toolbox;

337

Ibidem, Toolbox nr. 47 evaluation criteria and questions

338

European Commission, Better Regulation Tool #47 Evaluation criteria and questions.

339

Cf. W. van Ballegooij, P. Bakowski, The cost of non-Europe in the Fight against Terrorism, EPRS, European Parliament,

2018, p. 19.

340

European Commission, ‘Ninth Progress Report towards an Effective and Genuine Security Union’ COM (2017) 407 final;

European Commission Staff Working Document, ‘Comprehensive Assessment of EU Security Policy’ SWD (2017) 278

final.

341

I. Anglmayer, Evaluation and ex-post impact assessment at EU level, EPRS, 2016

342

Fundamental rights have been recognized by the European Commission as a criterion for impact assessment, but not

yet (explicitly) as a criterion for evaluation; European Commission, Better regulation guidelines and toolbox, Toolbox

nr. 28 fundamental rights & human rights

EPRS | European Parliamentary Research Service

the principle of mutual recognition and mutual trust and upholding these values.

343

They are

discussed between the questions of effectiveness and efficiency given the close connection they

have with the objectives of the FD EAW and its efficient/proportionate use.

Figure 5: Simplified view of the intervention and the 5 key evaluation criteria

Source: European Commission, Better Regulation Tool #47 Evaluation criteria and questions.

In line with the methodology presented in section 1.2., this chapter builds on the quantitative and

qualitative data presented in chapter 1 and the desk research reflected in the overview of the main

implementation challenges provided in chapter 2. This information is combined with the outcome

of the written and oral replies provided to the questionnaire contained in Annex II. The replies,

received during the months of March and April 2020, have been categorised in terms of the

international organisation (Council of Europe, Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment (CPT)), EU institution (Commission, Council),

agency (Eurojust and FRA), affiliation or profession of the interviewee concerned. Interviewees

replied in their personal capacity, where relevant referring to official documents and statements of

343

CJEU judgment of 25 July 2018 in Case C-216/18 PPU Minister for Justice and Equality v LM ECLI:EU:C:2018:586

European Arrest Warrant

their organisation. Where necessary, further context to their answers is provided, by specifying the

national background of the interviewee concerned and through references to scholarly debates.

3.1. Effectiveness

Effectiveness in this case this concerns the extent to which the objectives of the FD EAW have been

achieved. The main objectives; speeding up procedures, removing the complexity and potential for

delay inherent in extradition procedures, implementing the principle of mutual recognition and

ensuring that an EAW is subject to sufficient controls by a judicial authority will be discussed in the

following paragraphs.

3.1.1. Speeding up procedures (recital 1)

Recital 1 to the FD EAW refers back to the 1999 Council conclusions

344

discussed in section 1.1. in

accordance with which ‘the formal extradition procedure should be abolished among the Member

States in respect of persons who are fleeing from justice after having been finally sentenced and

344

Presidency Conclusions-Tampere European Council, 15-16 October 1999, Bul. 10/1999, points 33-35.

Key findings

The FD EAW has achieved the objective of speeding up handover procedures. The FD EAW also led to a

considerable simplification of those procedures by moving away from a system in which decisions on

extradition were ultimately taken at government level, introducing a standard EAW form, strict and short

time limits and removing (political offence) or reducing (double criminality, nationality) refusal grounds.

However, in practice the executive is still called in to assist judicial authorities, whilst practical

cooperation on the basis of the form is not always running smoothly, with CJEU case law leading to

further complexity. Eurojust has seen an uptick in assistance requests indicating its added value for

practitioners. Finally, the rights of the defence might have been compromised due to the shortening of

appeal possibilities.

Despite the different agendas of certain Member States and the European Commission leading to the

choice for mutual recognition to be the ‘cornerstone’ of judicial cooperation, the objective of limiting

the grounds for refusal based on the verification of double criminality seems to have been achieved

overall. However, there are remaining uncertainties regarding the scope of the test to be applied in

situations where such verification is still allowed. The vague description of certain list offences has led

to calls for further harmonisation of substantive criminal law, though the practical need for doing so

should be further supported with evidence.

The limitation of the nationality exception has been successful where prosecution is concerned.

Regarding the execution of sentences, a number of Member States have made the optional grounds for

execution contained in Article 4(6) FD EAW mandatory. In case of nationals and residents of the

executing Member States, issuing judicial authorities should have social rehabilitation perspectives in

mind before issuing an EAW. CJEU case law on the surrender of EU nationals to third states and the

decision of certain Member States to no longer surrender their nationals to the UK during the transitional

period testify to the enduring sensitivities.

CJEU case law has reinforced control by (independent) judicial authorities in the issuing and executing

Member State, notably by excluding the police and the executive from issuing EAWs. At the same time

there are concerns regarding the degree in which this case law results in effective judicial protection of

requested persons.

EPRS | European Parliamentary Research Service

extradition procedures should be speeded up in respect of persons suspected of having committed

an offence.’ As mentioned in section 1.1.3., in accordance with the Commission’s statistics in 2017,

requested persons who consented were surrendered within 15 days. For those that did not consent

the procedure lasted on average 40 days,

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a remarkable reduction compared to the respective

average under the pre-existing extradition regime. In 2018 a slight increase in the average length of

the surrender procedure was reported.

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In general most respondents welcome this increase in

speed as it provides certainty for law enforcement, the victim and the requested person. The exact

reason for the slight increase in average length of the surrender procedure in 2018 cannot be

determined with great certainty. Both a respondent from the Council secretariat and an academic

expert indicated that the delay might be caused by the application of the CJEU case law, notably as

regards the definition of judicial authorities (discussed in Section 2.1.1.) and detention conditions in

the issuing Member State (discussed in Section 2.2.6). Finally, the rights of the defence might have

been compromised due to the shortening of appeal possibilities. A representative of the ECBA

pointed out that Member States have put different procedures in place, with different deadlines for

lodging a defence application or an appeal.

3.1.2. Removing the complexity and potential for delay inherent in

extradition procedures (recital 5)

In accordance with recital 5 to the FD EAW ‘the objective set for the Union to become an area of

freedom, security and justice leads to abolishing extradition between Member States and replacing

it by a system of surrender between judicial authorities.’ Furthermore, it states that ‘the introduction

of a new simplified system of surrender of sentenced or suspected persons for the purposes of

execution or prosecution of criminal sentences makes it possible to remove the complexity and

potential for delay inherent in the present extradition procedures. Traditional cooperation relations

which have prevailed up till now between Member States should be replaced by a system of free

movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions,

within an area of freedom, security and justice.’

On this point, a representative of the European Commission listed the main achievements of the FD

EAW as moving away from a system in which decisions on extradition were ultimately taken at

government level, the introduction of a standard EAW form, strict and short time limits and a

removal (political offence) or reduction (double criminality, nationality) of grounds for refusal.

However, they also indicated room for improvement for instance as regard the form taking into

account findings of the report on 'improving mutual recognition of European Arrest Warrants for

the purpose of executing in absentia judgments'

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discussed in Section 2.2.5. A respondent from

the Council secretariat shared the general assessment that the FD EAW has led to a reduction in

complexity, although they also indicated that application of the CJEU case-law in recent years had

made the procedure in some situations (much) more cumbersome. In this regard, a representative

of Eurojust indicated that it had seen a significant increase of the number of cases where its

assistance was sought to facilitate and improve the execution of the EAW (from 442 cases in 2018 to

599 cases in 2019).

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Interviewees from the FRA confirmed the impression that there is a lack of

knowledge amongst judicial authorities of each other’s legislation and practice. The FRA operates a

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Commission staff working document, Replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2017, SWD (2019) 318 final of 28.8.2019.p. 5.

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Commission staff working document, replies to questionnaire on quantitative information on the practical operation

of the European arrest warrant – Year 2018, not yet published.

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InAbsentiEAW, Research project on European arrest warrants issued for the enforcement of sentences after in absentia

trials.

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Written response by Eurojust.

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number of databases containing national jurisprudence.

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This does not include the EAW (so far). A

judge interviewed submitted that in their experience, the aim of enhancing the direct contacts

amongst the judicial authorities has not been fully achieved. There were still many requests for

clarification, including cases in which the assistance of the executive was requested. In addition, in

their opinion judges were less connected than public prosecutors. Furthermore, a lack of linguistic

skills continues to be an obstacle to cooperation. Another judge interviewed expressed the opinion

that the FD EAW, with its limited grounds of non-execution, did not allow for practical solutions to

real life issues, for instance a single mother that would be separated from her young children if

surrendered. Even if the executing judicial authority refused to execute the EAW, the SIS signal

would stay in place, meaning the individual could be picked up again in another EU Member State

(See Section 2.1.).

3.1.3. Implementing the principle of mutual recognition (recital 6)

In recital 6 to the FD EAW it is underlined that ‘the European Arrest Warrant provided for in this

Framework Decision is the first concrete measure in the field of criminal law implementing the

principle of mutual recognition which the European Council referred to as the "cornerstone" of

judicial cooperation.’ As discussed in Section 1.1. and Section 2.1., there are different strands of

thought amongst Member States and academia as regards to the interpretation and consequences

of the principle of mutual recognition. These differences of approach have also filtered through in

the interviews with stakeholders. For instance, a German judge interviewed stated that they agreed

with the basic idea of mutual recognition, but that essential constitutional requirements, notably

human dignity, would need to be respected, referring thereby to article 1 of the German Basic

Law.

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Or as a CPT member interviewed put it: ‘In Germany it is dignity first, in France it is trust first’.

As regards limiting the application of the double criminality requirement

As discussed in Section 2.2.2., Article 4(1) FD EAW still maintains an optional grounds for non-

execution for cases in which the act on which the European Arrest Warrant is based does not

constitute an offence under the law of the executing Member State. The exception to the double

criminality requirement is laid down in Article 2(2) FD EAW. For 32 offences (a 'positive list') there is

only a single qualified criminality requirement (the acts should be punishable by deprivation of

liberties of at least three years in the issuing Member State).

On this point a Commission representative indicated that a number of Member States have made

the optional grounds for non-execution contained in Article 4(1) FD EAW mandatory. Furthermore,

a number of Member States require double criminality outside the scope of the instrument. The

Commission representative also recalled that the question has come up as to whether the list of

offences for which there is no double criminality check in accordance with Article 2(2) FD EAW needs

to be enlarged. However, when they discussed this issue with legal practitioners, judges and

prosecutors, the problem did not seem so much related to the fact that some offences were not

included in this list, but more the fact that several offences listed in Article 2(2) of the FD EAW are

described in rather vague terms. Examples include ‘fraud’ and ‘sabotage’. This has given rise to a

variety of interpretations, and quite often EAWs are issued for facts that do not even qualify as

criminal offences in other Member States, such as fraud involving a small amount of damage. In any

case, the Commission representative indicated that the list can be expanded under the FD EAW, at

any time, by the Council acting unanimously. But there has never been a request to that effect. A

representative from the Council secretariat echoed the comments of the Commission in the sense

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e.g. the FRA database on anti-Muslim hatred

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Basic Law for the Federal Republic of Germany, Article 1(1): ‘Human dignity shall be inviolable. To respect and protect

it shall be the duty of all state authority.’

EPRS | European Parliamentary Research Service

that in their view the double criminality requirement had not played a major role (with some

exceptions). At the same time, Member States continued to insist on its inclusion in other mutual

recognition instruments. In their view, the European Union needed to proceed with the

harmonisation of substantive criminal law, notably as regards the 32 list offences. An academic

interviewee however pointed out that they did not observe practical cases where there were

concerns that would substantiate the need for harmonisation.

A representative from Eurojust equally pointed out that in a few but quite relevant cases, Eurojust

faced the difficulty of the application of the dual criminality ground, including on how this test

should be properly applied. The main question was whether the factual elements underlying the

offence would be criminalised in the executing Member State and whether a similar interest was

protected in the law of the executing Member State. This is a task for the executing authority, but it

must do this always in light of the guidance provided by the CJEU’s case law and not only be gu ided

by a pure national law approach. They added that from an operational point of view, it is clear that

a full abolition or further restriction of the dual criminality test (or any other grounds for non-

recognition), would facilitate the execution of EAWs. With reference to the CJEU’s Advocaten voor de

Wereld

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case, discussed in Section 2.2.2., they submitted that there is no need for prior

harmonization of the underlying offences. A prosecutor interviewed equally pointed out that the

verification of double criminality in accordance with Article 2(1), 2(4) and 4(1) FD EAW hardly ever

posed a problem in practice. From the side of defence lawyers, it was pointed out that the non-

necessity of establishing a double criminality has in the ‘tick box offences’ greatly simplified the

process and has resulted in surrenders which might never otherwise have taken place under the old

extradition arrangements.

As regards limiting the nationality exception

As discussed in Section 2.2.3, in accordance with Article 4(6) FD EAW, the executing judicial authority

may refuse to execute an arrest warrant in cases where the EAW has been issued for the purpose of

execution of a custodial sentence or detention order where the requested person is staying in, or is

a national or resident of the executing Member State, and that state undertakes to execute the

sentence or detention order in accordance with its domestic law. On this point the Commission

representative indicated that some Member States have added additional grounds for refusal

containing prohibitions to surrender nationals.

The representative of the Council secretariat pointed out how sensitive the surrender of nationals

was, testified by the fact that a number of Member States notified the Council that they will not

surrender their nationals to the UK during the transition period after the UK left the EU (as discussed

in Section 2.2.7). The respondent from Eurojust explained the practical implications of the Petruhhin

case law (surrender to a third State).

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The requested Member State must exchange information

with the EU Member State of which the person is a national. It must give that other EU Member State

the opportunity to exercise its jurisdiction to prosecute offences of its own nationals. Finally, it must

give priority to a potential EAW of that Member State over the extradition request of the third

country. Eurojust’s casework shows that Eurojust can facilitate, speed up and ensure that the

information reaches the correct authority in the Member State of nationality. In some Member

States, different authorities are involved e.g. a Ministry of Justice (in relation to extradition request),

a prosecutor (in relation to decision on jurisdiction) and/or a court (in relation to issuing/executing

the EAW) which makes the procedure rather complex and shows that Eurojust's assistance can really

be useful.

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CJEU judgment of 3 May 2007, Case C-303/05, Advocaten voor de Wereld [2007] ECR 3633.

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CJEU of 6 September 2016, case C-182/15, Petruhhin ECLI:EU:C:2016:630

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Judges and prosecutors interviewed confirmed the restrictive approach certain Member States have

towards the surrender of their nationals for the execution of a sentence. An academic expert

interviewed also condemned what they referred to as the ‘selfish attitude’ of issuing judicial

authorities in this regard. The FD on Transfer of Prisoners allows for a possibility to execute the

sentence where the individual has the best chances of social rehabilitation. Issuing judicial

authorities however do not take this wider, European, perspective into account when issuing an

EAW. In this regard they also pointed to an inconsistency between the FD EAW and the FD Transfer

of Prisoners. The latter is explicitly aimed at achieving social rehabilitation, whereas the EAW does

not mention this objective.

3.1.4. Ensuring that an EAW is subject to sufficient controls by a judicial

authority (recital 8)

In accordance with recital 8 to the FD EAW: ‘Decisions on the execution of the European Arrest

Warrant must be subject to sufficient controls, which means that a judicial authority of the Member

State where the requested person has been arrested will have to take the decision on his or her

surrender.’ On the issuing side, recital 9 to the FD EAW clarifies that ‘the role of central authorities in

the execution of a European Arrest Warrant must be limited to practical and administrative

assistance.’ As discussed in Section 2.1.1., CJEU case law on the definition of issuing judicial

authorities and their independence from government stipulates that police officers and organs of

the executive cannot be defined as issuing judicial authority. This concept can however include

public prosecutors in accordance with certain conditions. Furthermore, as discussed in Section 2.2.6,

those arrested on the basis of an EAW should be guaranteed the right to a fair trial, including an

independent and impartial tribunal in the issuing Member States. The latter point will be further

developed when discussing compliance with EU values and fundamental rights in section 3.2 below.

A representative of the Council secretariat concluded that CJEU case law has reinforced the notion

of sufficient control by an (independent) judicial authority in the issuing Member State. According

to the Commission, most Member States have now taken measures to ensure compliance with CJEU

case law on this point. The interviewee from Eurojust indicated that CJEU case law has raised many

questions, particularly in relation to those Member States where public prosecutors were or are in

charge of issuing EAWs. Were they ‘independent’ of the executive in the meaning of the CJEU’s

judgments? And did they meet the requirements of effective judicial protection? Eurojust has

played, and is playing, an important role in supporting the national authorities in concrete cases. In

the days after the first judgments came out, some persons were released. In other cases, a release

was prevented, with the support of Eurojust: EAWs, issued by public prosecutors not meeting the

requirements of the CJEU’s case law, were re-assessed and confirmed by courts. As discussed in

Section 2.2.1 to support the national judicial authorities in such cases, Eurojust published a

questionnaire and a compilation of the replies. It includes information, per Member State, in relation

to the crucial questions that the judgments triggered. Eurojust is currently preparing an update of

that document.

One judge interviewed confirmed that based on their personal experience, the EAW had succeeded

in achieving the objective of sufficient controls by a judicial authority in the Member States. A court

clerk pointed out that the question of which criteria determine whether an authority is an executing

judicial authority is currently before the CJEU.

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In their opinion, given the far-rea ching

consequences of the surrender proceedings and of surrender itself, an executing judicial authority

should always be a court or a judge. A representative of the ECBA expressed the opinion that the

system of judicial control is flawed in its general conception. Every person who is arrested should be

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Case C-5/19, Openbaar Ministerie.

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brought immediately before a judge who will analyse the lawfulness of detention, including – in

pending cases – if there is enough evidence to subject the person to continued detention (pre-trial

detention) in accordance with Article 6 EU Charter. This does not happen in EAW proceedings. The

judge in the executing state does not perform this control at all. And the judge in the issuing state

does not perform this control promptly after detention in the executing state (and often the lawyer

in the issuing state is not allowed to have access to the case files before surrender to the issuing

state, which is essential to challenge detention). An academic expert expressed their disagreement

with CJEU case law on this point, as in their view it only complicates the surrender procedure and is

not in line with extradition under the Council of Europe system, in which prosecutors are allowed to

request extradition. However, this statement may be rebutted in pointing out that in accordance

with article 52(3) of the EU Charter, the EU can and has set higher standards in terms of fundamental

rights protection.

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3.2. Compliance with EU values including fundamental rights

In accordance with recital 10 to the FD EAW, ‘The mechanism of the European Arrest Warrant is

based on a high level of confidence between Member States. Its implementation may be suspended

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EU Charter, Article 52(3): ‘In so far as this Charter contains rights which correspond to rights guaranteed by the

Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights

shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing

more extensive protection.’

Key findings

EU action to monitor and uphold EU values has not led to a swift and effective resolution of threats to the

rule of law in certain Member States. CJEU case law which requires executing judicial authorities to assess

potential violations of fair trial rights in the issuing Member State on a case-by-case basis has led to

different outcomes regarding EAWs issued by the same Member State. Furthermore, CJEU case law puts

the spotlight on the need to provide national courts with proper human and financial resources. They also

need access to (centralised) knowledge on the criminal justice systems (including EAW decisions) and

safeguards for compliance with EU values in the other Member States.

Detention conditions might be easier to assess than compliance with EU values more generally, especially

if the resources of the Fundamental Rights Agency (FRA, criminal detention database) and Eurojust and

other relevant information from the ground are relied upon in the process. Nevertheless, there is no

mechanism in place to ensure a proper follow-up to assurances provided by issuing judicial authorities

after surrender. Much is to be gained through further intensifying cooperation and funding to

international prison monitoring bodies and making sure that their reports are properly followed up by EU

Member States. Furthermore, a lot is expected of EU funding to modernise detention facilities in Member

States and to support them in addressing the problem of deficient detention conditions. However, this

should go hand-in-hand with domestic criminal justice reform.

EU legislation in the area of detention conditions could have added value. However, the impact would

depend on the scope of such legislation (only addressing procedural requirements in terms of reasoning

for pre-trial detention and regular reviews, or also material detention conditions) the level of

harmonisation chosen and its ultimate implementation. In particular, the Council of Europe standards and

ECtHR case law should be taken as a minimum and built upon to accommodate the specific context of

transnational cooperation on the basis of mutual recognition within the AFSJ. Given the lack of a

separation in practice between pre-trial and sentenced detainees such a measure could have a positive

impact on detention conditions overall.

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only in the event of a serious and persistent breach by one of the Member States of the principles

set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article

7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.’ (currently Article 7(2)

and 7 (3) as a new Article 7(1) TEU has been introduced to tackle 'a clear risk of a serious breach of

EU values').

Recital 12 furthermore stipulates that the FD EAW ‘respects fundamental rights and observes the

principles recognised by Article 6 TEU and reflected in the EU Charter (Article 6 has since been

amended to include a reference to the now binding EU Charter). Nothing in this Framework Decision

may be interpreted as prohibiting refusal to surrender a person for whom a European Arrest Warrant

has been issued when there are reasons to believe, on the basis of objective elements, that the said

arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds

of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual

orientation, or that that person's position may be prejudiced for any of these reasons. This

Framework Decision does not prevent a Member State from applying its constitutional rules relating

to due process, freedom of association, freedom of the press and freedom of expression in other

media.’ There is a shorter reference to respect for fundamental rights and fundamental legal

principles in Article 1(3) FD EAW: ’This Framework Decision shall not have the effect of modifying

the obligation to respect fundamental rights and fundamental legal principles as enshrined in

Article 6 of the Treaty on European Union.’

As discussed in Section 2.2.6., by interpreting these provisions in the light of the EU Charter, the CJEU

has now created a de facto fundamental rights grounds for non-execution. However, many

questions remain unanswered regarding the exact role of the executing judicial authority in

safeguarding the fundamental rights of the requested person, both regarding EAWs where there

are concerns relating to poor detention conditions and broader concerns relating to the right to a

fair trial, including an independent and impartial tribunal.

3.2.1. Actions by EU institutions on the enforcement of EU values

In Section 2.2.6., the efforts of EU institutions to monitor and enforce EU values were discussed. The

Commission is preparing its first annual rule of law report covering all Member States. On this point

the European Parliament has called for an interinstitutional agreement on an EU monitoring and an

enforcement mechanism on democracy, the rule of law and fundamental rights. The Commission

also triggered the Article 7(1) TEU procedure against Poland,

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whilst the Parliament did the same

regarding Hungary.

356

Both procedures are now pending in the Council.

Referring to these developments, an interviewee representing the European network of cou ncils for

the judiciary (ENCJ) recalled a manifesto

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adopted by its general assembly on 7 June 2019. This

manifesto urged EU institutions to endorse the central role that the judiciaries and judicial networks

play in promoting and protecting the rule of law and formalise their role in any future rule of law

evaluation mechanism. It also called upon EU institution, in particular the European Commission, to

encourage further investments by the Member States in their judiciaries and to ensure that Member

States involve judiciaries in relation to reform or modernization plans. Furthermore, it called for

355

Proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the

rule of law, COM(2017) 835 of 20 December 2017.

356

European Parliament resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to

Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values

on which the Union is founded (2017/2131(INL)), P8_TA(2018)0340.

357

The ENCJ Bratislave Manifesto For the European Commission and European Parliament 2019 – 2024 mandate, 7 June

2019.

EPRS | European Parliamentary Research Service

relevant information on national judicial systems, such as any European Commission synthesis of

the information gathered in the preparation of the EU justice scoreboard and the European

semester, as well as the information collected and the standards developed by the Council of

Europe, the ENCJ and other EU judicial networks, to be promoted through raising public awareness

and made available in a centralised and easily accessible place. A judge interviewed commented

that the lack of progress of the Article 7 proceedings against Poland and Hungary shows that this

article does not provide the EU institutions with an effective tool to ensure compliance with the

fundamental values of the EU

3.2.2. CJEU case law balancing mutual trust and upholding the rule of law

An interviewee working for the Council secretariat acknowledged that CJEU case law balancing

mutual trust and upholding the rule of law required quite a lot from practitioners. However, it was

understandable given the current context. At the same time, they pointed to the Commission’s

mandate to initiate infringement procedures and launch Article 7 TEU procedures where necessary.

A court clerk interviewed confirmed that the LM case law is challenging to apply in practice. Even

where it is accepted that there are systemic rule of law problems, the test on the need to

demonstrate their likely impact on individual cases is almost impossible to apply according to them.

Furthermore, they pointed out that it is still unclear how CJEU case law requiring structural

independence to qualify as a ‘judicial authority’ applies in the context of Member States with

systemic rule of law problems. Finally, legal aid does not fund lawyers in other Member States to

provide this type of expertise.

A German judge interviewed stressed that the 17 February 2020 decision of the Higher Regional

Court of Karlsruhe, discussed in section 2.2.6. was in conformity with CJEU case law. A German

prosecutor interviewed added that the case was well received by other judicial authorities in

Germany. The particularities of the case (minor crime, no flight risk as the suspect lives with his family

in Germany) made it a good test case. It should be added that the truly decisive factor for immediate

suspension of surrender was the alleged involvement of two influential Polish nationals who were

said to have bribed witnesses to engage in perjury and to have commissioned others to assault the

suspect.

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An Irish defence lawyer expressed the opinion that in Ireland, following LM, there was still a

disappointing lack of engagement with the realities of fair trial infringements in Poland. This lack of

engagement reflected the traditional ‘high level of confidence’ in other Member States, even

though the evidence suggested that such confidence was now unwarranted. In their view, the

requirement to demonstrate ‘a real risk of flagrant denial of justice’ is too exacting a standard and it

has resulted in a person being surrendered notwithstanding that there was a statistically not-

insignificant chance that they would be subjected to breaches of the essence of their fair trial rights.

An academic expert remarked that the CJEU is moving away from mutual recognition based on

mutual trust but places the responsibility in the hands of the executing judicial authority for fixing

the practical problems (applies both to rule of law violation as well as poor detention conditions).

An NGO representative expressed their disappointment at CJEU extending the two-step approach

regarding prison conditions to the rule of law question. They believe that the CJEU should get rid of

the second limb of this test, potentially in reply to further preliminary references. At the same they

appreciated that individual judges are seeking to defend their independence and a fair trial even

when they are under political pressure. Suspending all surrenders might take away an incentive for

them to continue to do so.

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T. Wahl, Fair Trial Concerns: German Court Suspends Execution of Polish EAW, EUCRIM, 2 April 2020.

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3.2.3. CJEU case law balancing mutual trust and fundamental rights in the

area of detention

One of the main reasons behind the diminution of mutual trust is related to poor detention

conditions and the problem of overcrowded prisons in the EU Member States. During the first

exchange of views on the own-initiative implementation report in LIBE, the Commission pointed

out that EAWs have been put on hold with regards to Poland, Hungary and Romania. Judicial

authorities in some of the Member States, in particular Germany, Austria, the Netherlands and

Ireland, are more and more reluctant to execute decisions in sensitive criminal matters. Other

Member States, like for example France and Spain, are very concerned that the mutual recognition

principle is put aside, endangering effective cooperation in criminal matters.

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This reflects these

countries’ approach towards mutual recognition discussed in Section 1.1.1.

The Commission has looked at the effects of the Aranyosi judgment in practice, and what has

happened to the EAW after these judgments. It has turned out that prison conditions in the

following ten Member States have been scrutinized: Romania, Bulgaria, Greece, France, Poland,

Belgium, Croatia, Italia, Latvia, Hungary and Portugal. The Commission however observed a very

diverse picture. Some Member States classify specific issuing Member States at risk, whilst others do

not and continue executing EAWs originating from those Member States. Also, to assess whether

there is a real risk of inhuman and degrading treatment, judges rely on different types of sources.

Some take into account reports of the CPT, others of national bodies monitoring detention

conditions and some even make use of newspaper articles.

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During the interview, the Commission

officials added their impression that judicial authorities from certain Member States that have their

own issues with prison conditions will not challenge EAWs from other Member States based on

prison conditions. They highlighted that this lack of action relates to the question whether the judge

should raise this ex officio (as arguably is the case in the LM jurisprudence) or only when the defence

explicitly raises it.

The Commission has tried over the last year to solve the issue of how to assess detention conditions

in other EU Member States by asking the FRA to develop a one-stop shop database which can be

consulted by the different judges and prosecutors. This database,

361

which was launched in

December 2019, combines in one place information on the detention situation in all EU Member

States. The database does not rank the Member States, but it informs on selected aspects of

detention conditions, such as cell space, sanitary conditions, access to healthcare and protection

against violence. The Commission expressed the hope that this will improve the situation and also

lead to a less divergent assessment of the detention situation in the different Member States.

362

An interviewee from the Council secretariat pointed to the difficulty in applying CJEU case law in

the area of detention conditions. In this regard, they would welcome more guidelines. They pointed

to the fact that the Aranyosi case law had led to more coordination and involvement of the Member

States Ministries of Justice in the procedure to help judicial authorities cope. This might be seen as

contrary to the aim to judicialize the procedure. In reply to the question of what the judicial

authorities in the 23 other Member States are doing with CJEU case law, beyond the four critical

359

European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h42-45

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

360

Ibidem

361

FRA, criminal detention in the EU.

362

Intervention European Commission (supra n. 358)

EPRS | European Parliamentary Research Service

ones identified by the Commission, they replied that in those Member States judges continued to

rely on the principle of mutual trust.

An Italian judge interviewed equally commented that CJEU case law has led to some problems. They

confirmed the Commission’s impression that the main issue is whether the assessment of

fundamental rights should be done ex officio in all cases, only upon request of the defendant or

whenever some doubts arise with regard to the prison conditions. This has led to diverging practices

among Member States. They pointed out that the FD EAW is based on the mutual trust, which

included the mutual trust that all Member States respect human rights, which could be considered

as a ‘pre-condition’ for being part of the EU. In this regard, the judge submitted that an assessment

ex-officio seems to be in contrast with the concept of mutual trust. They continued in stating that

some Member States also take into account that the quality of prison facilities is undoubtedly

different throughout the EU and it is a de facto situation that depends on different economic

resources, different levels of criminality etc. A prosecutor observed that they saw the fact that CJEU

aligned its case law with the ECtHR as a positive development. On the contrary, an Irish defence

lawyer argued that in their view both the Commission and the CJEU have in practice been overly

concerned with protecting the integrity and efficacy of the FD EAW at all costs, at the expense of

protecting Article 3, Article 5 and Article 6 ECHR rights in individual cases. In this case mutual trust

had been taken too far. Finally, an NGO representative commented that it seems even courts do not

want to engage in the politically sensitive act of refusing surrender over detention conditions. This

action is sometimes avoided by stopping the case at prosecutorial level or before the final decision

on surrender is taken, or by refusing surrender on other, politically less sensitive, grounds. F inally,

an academic expert pointed to the discrimination amongst citizens that results from CJEU case law

in the area of detention conditions: domestic prisoners languish in poor detention conditions, while

surrendered persons get (temporary) better conditions. They expressed the view that the EAW is not

the right lever to address detention conditions.

Assurances

A prosecutor interviewed highlighted the importance of following up on assurances provided by

the issuing judicial authority post-surrender. How is the person treated in practice? A representative

of the ECBA however pointed to doubts on whether the system of assurances, in view of the

existence of evidence, in some Member States where there are systemic deficiencies in the Member

States in the field of detention conditions, should be considered effective in order to safeguard the

fundamental rights of surrendered persons not to be subject to ill-treatment or torture.

Furthermore, in their view:

i) the assurances are often too general (e.g. not indicating to which prison or prisons

the person will be sent);

ii) there is no set legal consequence for the violation of assurances, i.e. the person might

not have any effective remedy to the violation of such assurances;

iii) there is no follow up by the executing judicial authority on the compliance with the

assurance (and legal assistance to that end is also not guaranteed, since the EAW case

is closed);

iv) there is no specialised monitoring of assurances.

They suggested requiring that an inspection of the prison(s) in which the person is likely to be

detained be organised in the scope of the EAW proceedings. There would be different methods on

how to do this, but it could be done by experts from the issuing judicial authority and the defence,

or with the participation also of the issuing courts. General monitoring will normally not avoid the

need for these, since up-to-date and prison specific information is needed

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3.2.4. The capacity of practitioners to keep track of CJEU case law

The Commission interviewees indicated that they are reflecting on how best to update the

Commission handbook on the European Arrest Warrant in view of the speedy developments in CJEU

case law. A solution might be to join efforts with Eurojust, which is already producing overviews of

CJEU case law. They indicated that training on the EAW is conducted by European judicial training

network (EJTN) and the academy of European law (ERA). A representative from the Council

secretariat mentioned that the capacity of practitioners to keep track of CJEU case law really

depends on the degree of centralisation of the execution of EAWs in the Member State and on the

degree of specialisation of judicial authorities concerned. Do they only focus on surrender

procedures for criminal cases in general for instance, or on surrender procedures for all kinds of

cases?

Eurojust’s representative mentioned that in recent years, practitioners have often approached the

agency and requested support on how to proceed in a concrete case, raising very practical and

pertinent questions related to the CJEU’s case law. They opined that this case law confirms how

mutual recognition can only be successful if it is applied in full compliance with fundamental rights.

The ‘specific’ assessment developed by the CJEU is a challenging test for judicial authorities. It

requires a case-by-case analysis to verify whether in the particular case at hand there is a risk for a

breach of the fundamental right at stake. In this regard, the Eurojust representative underlined that

national courts must act as EU courts when applying EU law. They are the ones who ensure that

fundamental rights, as guaranteed in the EU legal order, are applied correctly. This requires an in-

depth knowledge of the relevant CJEU’s and ECtHR’s case law and requires access to accurate,

relevant, up to date information. In Eurojust’s casework, they witness on a daily basis how

practitioners struggled with this difficult task and how they were asking, repeatedly, for Eurojust’s

support in such cases. The representative of Eurojust continued that one of the biggest challenges

is to find the right balance between requesting ‘necessary’ information and respecting the time

limits. The vast majority of cases at Eurojust relate to requests for additional information. National

authorities often contact Eurojust when requests for additional information remain unanswered and

when the need for a reply has become extremely urgent.

A French magistrate stressed that judicial cooperation was added to their already heavy domestic

workload. A Danish criminal defence lawyer described the knowledge of EAW procedure in their

Member State as ‘a long way to Tipperary’. There is only so much one can expect from training,

especially for judges who only deal with EAW cases occasionally. According to them the Commission

handbook is seen as very useful, but it should be updated more regularly (at least once a year).

A representative of the ECBA added that there is no specialisation in terms of legal aid work in EAW

cases, which makes it non-effective – not to say impossible – from a financial viewpoint to specialise

and get the necessary tools. An academic expert also voiced the opinion that judicial authorities in

many Member States are not asking questions (on detention, rule of law etc) simply because they

lack the capacity or knowledge. The same opinion was expressed by an NGO representative. They

also mentioned that in their experience, there was a lack of awareness amongst judges of the

possibility of raising questions with the CJEU in an urgency procedure. They also highlighted that

the lack of knowledge amongst judges that had decentralised the execution of EAWs was also

reflected in a similar lack of knowledge amongst defence lawyers.

EPRS | European Parliamentary Research Service

3.2.5. Strengthening the activities of prison monitoring bodies and EU

funding for prison reform

A CPT member indicated that in the particular field of detention conditions, the CPT has found and

described in its reports

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situations in EU Member States which could be considered to be in

violation of Article 3 ECHR, as well as other situations which, although did not amount to such a

violation, raised serious concerns from a preventive perspective in relation to the avoidance of ill-

treatment and torture regarding detention conditions. From a CPT practitioners’ perspective, in the

field of detention conditions, EU institutions have particularly contributed to the monitoring of

detention conditions by setting up an NPM-Network, together with the Council of Europe, in which

the CPT also participates.

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The member pointed to the extremely important role of NPMs in the

monitoring of detention conditions. NPMs are the independent monitoring bodies operating on the

ground in Member States on a permanent basis, hence they are best positioned to provide

continuous monitoring and also to follow up on the implementation of recommendations by

international monitoring bodies, such as the CPT. Setting up an NPM, however, is an obligation

deriving from international law (OPCAT). Not all EU Member States have ratified the Optional

Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (OPCAT).

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In addition to the activities of prison monitoring bodies, the Commission officials interviewed also

referred to the use of structural funds to improve prison conditions in the EU as referenced in

paragraph 24 of the 2018 Council conclusions on 'promoting mutual recognition by enhancing

mutual trust':

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The Commission is invited to promote making optimal use of the funds under the EU financial

programmes, in case they are made available, in order to strengthen and promote judicial cooperation

between the Member States, including in order to modernise detention facilities in the Member States

and support the Member States to address the problem of deficient detention conditions, as this can be

detrimental to the application of the mutual recognition instruments.

3.2.6. Potential EU legislation in the area of detention conditions

During the exchange of views in the LIBE Committee the Commission representative mentioned

that on average within the EU the proportion of pre-trial detainees amounts to 20 % of the prison

population.

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The length of pre-trial detention also varies greatly from one Member State to

another. In some countries it is only a few months, whilst in others it might take several years before

the actual trial takes place. The Commission highlighted that a few years ago, DG Justice performed

a comparative law study on pre-trial detention, which was finalised in 2016.

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The Commission

stated that it turned out from their study, that Member States in principle conform to a reasonably

high degree with the ECtHR case law and also the Council of Europe recommendations, but that

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Available at https://hudoc.cpt.coe.int/eng

364

See in this regard the European NPM Newsletter.

365

OPCAT, United Nations Resolution A/RES/57/199 of 18 December 2002.

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Council conclusions on mutual recognition in criminal matters-'Promoting mutual recognition by enhancing mutual

trust', OJ C 449 of 13 December 2018, pp. 6-9.

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European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h45-47

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

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The study is not publicly available.

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there are many shortcomings in practice. The previous Commissioner for Justice had not proposed

legislation, given the sensitive and complex nature of the issue of pre-trial detention. The

Commission representative concluded by stating that the problem of the overuse of pre-tr ial

detention needs innovative solutions, including through the modernisation of criminal procedural

codes and through the strengthening of the judiciary. She mentioned that the current

Commissioner for Justice, Mr Reynders, could potentially look more closely into these issues and

could propose some measures in this field.

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During their interview, the Commission officials

interviewed furthermore indicated that further discussions on the potential scope of a proposal for

EU legislation pre-trial detention were needed. Would it entail only procedural requirements in

terms of review and reasoning for pre-trial detention or also material detention conditions?

Furthermore, the Commission interviewees recalled that during the Romanian presidency, th e idea

was floated to devise an EU instrument on the Transfer of Proceedings. However, that idea was not

picked up, as such an instrument was perceived to shift the burden to the Member State for r aising

the issue of prison conditions (by having to take over the proceedings as well).

A Council secretariat official furthermore expressed the view that the Commission should present a

proposal for a Directive on EU detention standards, both pre- and post-trial. In their view, o ne could

argue that the notion of ‘criminal procedure’ ex Article 82(2) TFEU covers both aspects (see the

discussion in Section 2.2.6 on this). Even if there had been a discussion on the matter during the

negotiations leading up to the adoption of the

Directive on the Rights of Children,

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an official legal

opinion was never adopted. In practice, even if the Directive would be limited to pre-trial detention

standards, they considered that a distinction between pre-trial and post-trial prisoners is difficult to

make in practice. Therefore, the criteria established for pre-trial prisoners would also benefit the

post-trial prisoners.

According to a CPT member, in the case where the EU adopts its own binding law instruments,

providing binding normative force under EU law to the obligations stemming from the OPCAT

would have added value in the countries in which there is still no NPM operating, and would also

allow for improvement in the operation of NPMs. It could also be considered to enact instruments,

which would give normative binding force to the standards on detention conditions produced by

the CPT in the field of detention conditions.

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The CPT representative however cautioned that

ECtHR case law is a minimum denominator which even falls behind of the CPT preventive standards

in some instances. Unless there are clear and high standards, there will likely always be a need of

control of detention conditions in EAW cases. The problem with detention conditions needs in any

event a multi-pronged approach, also aiming and addressing the root causes of poor prison

conditions, including overcrowding. Another CPT member doubted whether States would be

persuaded to improve prison conditions just to get people surrendered. Overall this CPT member

was more convinced of peer pressure and targeted funding as a means of getting (Member) States

to reform their prison system. They equally issued a warning. Past experience, including the

Directive on Access to a Lawyer, had shown that such efforts could also lead to a lowering of

standards established at CoE level. For instance, certain Member States have very problematic

legislation regarding contact with the outside world and the use of solitary confinement. If these

countries were to dictate their standards, that could lead to a race to the bottom. On the other hand,

the implementation of the Access to a Lawyer Directive had a positive impact in Member States. In

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European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020 at 9h45-47

https://www.europarl.europa.eu/ep-live/en/committees/video?event=20200220-0900-COMMITTEE-LIBE

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Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for

children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1).

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Available at: https://www.coe.int/en/web/cpt/standards

EPRS | European Parliamentary Research Service

reply to the question of whether the harmonisation of pre-trial detention standards at EU level could

have a positive knock on effect on detention conditions more generally, they said it could. In

particular, in many Member States there is no clear separation between prisons holding pre-trial

detainees and those holding convicted prisoners, as most are hybrids. Though the mixing of

prisoners should be avoided to prevent the negative influence of hardened criminals, it can also ha

positive implications. Counterintuitively, remand prisoners have much less rights than convicts (in

terms of activities, contact with the family, education and training), so a separate regime could

discriminate against remand prisoners.

An interviewee of the ECBA pointed to its ‘Agenda 2020: A new roadmap on minimum standards of

certain procedural safeguards’. In this document it calls for a specific EU measures on pre-tr ial

detention, stating that EU competence according Article 82 TFEU is not in doubt. The document

highlights that the very different standards in prison conditions infringe partly on the legal principle

of human dignity and have become obstacles to EAW proceedings. In particular, it points out that

there are currently no EU standards for time limits for pre-trial detention, nor for less intrusive

measures, specific remedies and/or regular judicial control by the responsible authorities.

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The CJEU is now engaging in questions with regards to the number of square meters a person

should have in a multi-person cell. According to an NGO representative, clearly more guidance on

this should be provided in EU legislation. They furthermore submitted that the need for EU

legislation is clear from the fact that the most important hurdle to the effective operation of the FD

EAW is problems regarding detention conditions post-trial. It will be difficult though to translate the

CoE standards into EU legislation.

3.3. Efficiency

The efficiency of the FD EAW is to be assessed against the costs incurred in its implementation,

covering both the costs to all stakeholders (Member States, victims and requested persons), such as

financial costs and others, including immaterial damage. As mentioned in section 2.1.2. there have

been concerns relating to the proportionality of a number of EAWs issued for 'minor crimes' and

before the case was 'trial ready', as well as in view of other possible judicial cooperation measures,

where the European Parliament's call for legislative reform has been answered through guidelines

in a Commission handbook.

During the first exchange of views on the own-initiative implementation report in LIBE, the

Commission stated that ‘the differences in proportionality assessment can be mostly explained by

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ECBA, Agenda 2020: A new Roadmap on minimum standards of certain procedural safeguards, April 2018.

Key findings

It is reported that the majority of Member States have put mechanisms in place in their domestic systems

for ensuring that EAWs are not issued for minor offences. This has resulted in the impression that there

has been a decrease in the number of EAWs issued for ‘minor crimes’. At the same time, there are still some

cases where a suspect appears to be wanted for questioning, rather than prosecution. Here, another

cooperation mechanism (the European Investigation Order, EIO) should be used. The option provided by

the FD EAW for the issuing judicial authorities to hear the requested person by video-link could also be

further stimulated. It is also important for a requested person to have access to a lawyer in the issuing

Member State. In some cases (where surrender would be disproportionate) this lawyer could encourage

the withdrawal of the EAW. However, certain Member States still do not provide and/or facilitate such

access. Furthermore, the inability of a lawyer to access information on the case in the issuing state can

make it impossible for them to provide effective assistance.

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the choices that Member States have made as regards their prosecution policy. Some have opted

for the legality principle (mandatory prosecution), whereas others have opted for the opportunity

principle. The majority of Member States actually have mechanisms in place in their domestic

systems for ensuring that EAWs are not issued for minor offences. In some Member States, such as

Poland, domestic legislative action has also been taken to weaken the legality principle, and also to

address the problem. There are also indications, if you look at the statistics, which suggests that the

problem is actually hugely decreasing. While we had 4 840 EAWs issued by Poland in 2009, in 2018

only 2 300 were issued. So that is a diminution by half actually. However, when there are serious

concerns on proportionality, there are also ways to deal with it in accordance with the fr a m ework

decision. As we have advised in our revised handbook of 2017, Member States should take into

account a certain number of criteria before deciding to issue an EAW. It is also advised that the

issuing and executing judicial authority enter into communication with each other. And the

executing judicial authority should always contact the issuing judicial authority when it needs more

information on the surrender’.

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An Italian judge replied that they are required to execute an EAW if it meets the requirements

established by law. Article 2(2) sets the minimum penalty (one year/four months) for an EAW to be

issued. In their view, it is in no way expected that the issuing state will carry out an additional

proportionality test at the time of the issuance of the EAW, let alone that the executing state carries

out a proportionality check to execute the EAW. The Italian judge pointed out that it cannot be

ignored that a different assessment on the proportionality of the EAW by Member States would find

its reason in the various criminal policies of the various states, as well as 'unquestionable, socio-

cultural differences’. Those differences became apparent through the reply from a German pu blic

prosecutor interviewed, who recalled that issuing Member States should test proportionality, not

the executing Member State. German courts must check the proportionality of an EAW.

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On the

executing side, in case these requests are received, contact will be made with the issuing authorities

and solutions may be found (for instance a hearing). An Irish defence lawyer pointed out that Ir ish

judicial authorities will not surrender a person if it is not clear that it is solely for the purpose of trial

rather than for investigation. A system of undertakings to that effect has developed and has

overcome what otherwise would have been a difficulty with implementation. A French magistrate

called for a specific EU instrument to allow for questioning a person (separate from the EIO). Another

Irish defence lawyer added that in serious cases of murder, sexual offences, drug trafficking etc. the

cost of the surrender procedure is clearly proportionate. However, they also pointed out that there

are a great number of minor crimes for which an EAW can be issued for which by any standard the

cost to the executing state is completely disproportionate. They also pointed to disruption to normal

life and the financial costs for the person whose surrender is sought.

A representative of the ECBA pointed out that in cases of EAWs issued for criminal prosecution,

unnecessary costs are often incurred when the judicial authority in the issuing state refuses to

interview the requested person/suspect remotely through video link, or by granting them safe

passage to travel to the issuing state so they can be heard and present their side of the story. Thereby

they also impede them from being granted bail in the issuing state at that point of time. This does

not only render the ESO completely useless, it also produces unnecessary delays and judicial costs

in the executing state. If the requested person is being granted bail in the executing state, but knows

that he or she will face definitely at least one or two months of pre-trial detention in the issuing

state, they might oppose surrender and lodge remedies against surrender just in order to ‘buy time’

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European Parliament, meeting of the LIBE Committee, Exchange of views on the own initiative implementation report

on the FD EAW, Intervention by Jesca Beneder, European Commission, DG JUST, 20 February, 2020

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Higher Regional Court of Schleswig-Holstein,2 Ws 13/20 of 6 February 2020.

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in relative freedom in order to prepare his or her defence, as preparing defence from within pre-trial

detention is almost impossible (no access to one’s own computer and documents, restricted access

to telephone, restricted time with lawyer etc.). In general, they indicated that EAWs are often not

proportionate since the crimes at stake are low or medium crimes and ultimately the person will not

be put in pre-trial detention or served any prison sentence in those cases.

It is also often unnecessary to have the person surrendered in order to pursue a cr im ina l cas e: it is

possible to conduct hearings by means of an EIO and trials may even be held in absentia in many

cases. The person could then even serve the sentence that results from the trial in the Member State

of residence. Furthermore, they held it ‘entirely disproportionate’ for an EAW to be issued in the

investigative stage with the single purpose of questioning or arraigning the person – an act that can

be done in most cases using remote means/EIO. They also pointed to disproportionality when the

time spent in detention in the executing state is not taken into account in the issuing state for the

purpose of calculating maximum pre-trial detention deadlines. The same applies to bail/house

arrest being accounted towards pre-trial detention or the final sentence. Finally, an EAW might be

entirely disproportionate when there are cases pending in both the issuing and executing Member

State for the same facts and the person will be subject to much harsher bail conditions, or to pre-

trial detention, in the issuing state, something which had not been imposed in the executing state.

As regards victims, a defence lawyer pointed out that for a near identical offence, one victim might

agree that the cost of an EAW is disproportionate and another strongly disagree. Other points to

note: it is arguable that for sexual offences, violent offences, hate crime and human trafficking, the

balance of cost and proportionality is of small relevance for the Member State, suspect or victim.

There is a common European interest in disrupting and prosecuting serious organised crime. The

prosecution of an apparently trivial offence can disrupt or deter the commission of more serious

offences. The return of a suspect national with established family ties and employment in the

requested Member State (which almost certainly would involve pre-trial detention on the grounds

of flight risk in the requesting Member State of prosecution) ought to, in the interests of the suspect

as well as cost and proportionality, be reserved for serious cases; unless ESOs can be effectively

deployed.

An NGO representative pointed out that the problem of EAWs being issued for very minor crimes

seems now to be a rare occurrence. However, there are still some cases where a suspect appears to

be wanted for investigation, rather than prosecution, when another cooperation mechanism could

be used. It is important for a requested person to have access to a lawyer in the issuing Member

State and in some cases (where surrender would be disproportionate) it is possible for a lawyer to

encourage the withdrawal of the EAW. In practice, however, it is often hard for a requested person

to get effective access to a lawyer in the issuing state (due to a lack of funds or a lack of information

on available lawyers). Furthermore, the inability of a lawyer to access information on the case in the

issuing state can make it impossible for them to provide effective assistance. In the context of

mutual recognition, a requested person should be able to challenge the decision to issue an EAW

pre-surrender in the issuing Member State, but the CJEU has set a low bar when determining the

level of review required to meet the test of effective judicial protection, where the decision to issue

the EAW is taken by a prosecutor.

Finally, an academic pointed out that the origin of the proportionality issue lies with the differences

amongst Member States’ legality principle (prosecute all, EAW for all). Trial readiness is difficult to

apply in practice and would put the bar very high. In certain Member States, evidence is collected

ahead of the trial, whereas in others it is collected at trial. A minimum evidentiary requirement would

be when authorities have enough evidence to arrest a person (which this interviewee deemed a

very low standard).

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3.4. Coherence

As discussed in Section 1.1.2., the FD EAW was amended in 2009 regarding decisions following

proceedings in absentia.

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Since 2009, several directives have also been adopted that approximate

the rights of suspects and accused persons more generally.

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Those directives also cover the rights

of individuals subject to EAW procedures.

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Finally, in the meantime, a number of other mutual

recognition instruments have been adopted that both complement the EAW system and in some

instances provide useful and less intrusive alternatives to it.

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At the same time, a number o f Co uncil

of Europe instruments in the area of extradition and mutual legal assistance remain relevant for

relationships with third countries, as well as with respect to types of judicial cooperation that have

not yet been harmonised by EU law. Finally, there is a link with EU measures approximating

definitions and sanctions in the area of substantive criminal law, especially those that are covered

by the list of offences for which the verification of double criminality is no longer allowed in

accordance with Article 2(2) FD EAW.

In relation to EU measures, the respondent from the ECBA pointed out that the problem with the

EAW is that it is based on an outdated vision of the area of freedom, security and justice (AFSJ). This

vision views surrender of persons between Member States as a mere ‘horizontal cooperation’ issue

between ‘sovereign states’ but is no longer correct. Instead, practice has shown that it should rather

be viewed as just a tool within the criminal proceedings of Member States, designed to operate

cross-border pre-trial detention in the AFSJ, as well as a tool that may only be used if necessary,

proportionate and adequate to safeguard the effectiveness of a criminal case, as the ultima ratio of

all other measures available to Member States. They furthermore point out that just as with pre-trial

detention provisions in a domestic Code of Criminal Procedure, criticism and reform of the EAW

cannot be made without looking into the system as a whole. Any reform must address the set of

judicial cooperation instruments in criminal matters, in particular mutual recognition instruments,

and stress the subsidiary relationship between the EAW (as the more restrictive measure for citizens’

right to liberty) and other, less coercive but equally efficient measures (EIO, ESO, service of

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FD EAW, Article 4a; Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions

2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural

rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the

absence of the person concerned at the trial, 2009 OJ (L 81) 24 of 27 March 2009.

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In accordance with a road map contained in Council document 14552/1/09 of 21 October 2009.

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See Section 2.3.

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See Section 2.1.

Key findings

The EAW should be seen as a tool for surrender to be used within the criminal proceedings of Member

States as a subsidiary measure to other, less intrusive options, in the spirit of a common EU Criminal Justice

Area. However, too often judicial authorities see it as a tool to obtain the person for the benefit of their

criminal proceedings, or to obtain execution of their sentence. In part this is due to inconsistencies

between various EU measures. Other EU measures either have different objectives (social rehabilitation

versus free movement of judicial decisions for instance), intervene at a different point (a supervision

measure should be considered before issuing an EAW) or do not contain mandatory language in their

operational provisions regarding the need to consider them as an alternative to issuing an EAW (EIO).

Finally, a number of Member States have so far not made sufficient efforts to transpose and implement

EU procedural rights directives timely and correctly. In absence of the Commission starting infringement

proceedings, it is to be feared that practitioners will only see EU legislation in this area as guidance.

EPRS | European Parliamentary Research Service

documents). As long as this is not done, Member State authorities will keep looking at the EAW as

‘the’ efficient measure to ‘proceed’ with a case when an accused person in located in another

Member State, regardless of the question as to whether the EAW is proportionate in the case at

hand.

3.4.1. UN and Council of Europe instruments in the area of extradition and

mutual legal assistance

An academic and representative of the Council secretariat pointed out that the EAW is now more

cumbersome than the European Convention on Extradition as regards to who may act as the is suing

judicial authority, as well as regarding the ability to refuse, with reference to (potential) fundamental

rights violations. On the other hand, they had the impression that issuing judicial authorities are not

engaging with alternatives to an EAW, such as the transfer of proceedings. A representative of the

ECBA expressed the position that the fact that the FD EAW regulates neither the transfer of

proceedings nor the resolution of conflicts of jurisdiction is a severe shortcoming both for the

prosecution and for the accused. A similar view was expressed by an academic expert. They referred

to proposals for EU legislation on the Prevention and Settlement of Conflicts of Exercise of

Jurisdiction in Criminal Law, developed under the guise of the European Law Institute in 2017.

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This would reduce the amount of Member States exercising jurisdiction, because there would be

clearer guidelines as to who is competent. Alternatively, they pointed to the option of limiting the

exercise of jurisdiction in the measures harmonising substantive definitions and sanctions.

3.4.2. EU measures

EU judicial cooperation measures

Regarding coherence with other judicial cooperation measures, the Commission pointed to the lack

of national capacity and practice with the ESO. Some Member States are not used to providing

alternatives to pre-trial detention, such as electronic monitoring and bail. In addition, it is

acknowledged that it is a highly complicated instrument on the deployment of which judges have

to make swift decisions in the pre-trial phase. The ESO also adds the element of having to

understand and trust the criminal justice system of the other EU Member State concerned. The

Commission pointed out that the origin of the ESO was that the Commission at the time wanted to

do something about the high number of prisoners in pre-trial detention. A legal instrument as

currently is considered under Article 82 TFEU was not feasible at the time. At the same time, the

Commission pointed out that defence lawyers could more actively promote the use of the ESO.

The Commission was more optimistic about the use of the FD PAS as it is to be applied in the post-

trial phase, where there is more time to consider its use. A representative of the Council secretariat

pointed to the need to consider using the ESO before issuing an EAW. If the person breaches the

supervision measures, an EAW can be issued. Beyond the challenges mentioned by the Commission

they pointed to the fact that several authorities were involved at national level. Finally, the ESO will

probably not be used in more severe cases, as then the judicial authority will want to keep the

suspect in detention.

A representative of the Council secretariat pointed out that the problem of a possible lack of

consistency between the FD EAW and FD on Transfer of Prisoners is due to a lack of clarity of Article

25 of the latter on enforcement of sentences following an EAW. They deemed the EIO as a real

alternative to the use of the EAW in all cases in which the detention of the subject is not actually

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European Law Institute, Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in

criminal matters in the European Union, 2017.

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necessary to carry out an investigative act. They did not deem the FD PAS and ESO as alternatives to

the EAW but rather as additional instruments in all cases where detention in prison has not been

imposed. The tools provided by these two framework decisions can constitute an incentive not to

impose a penalty or custodial measure. Promoting the knowledge of those instruments could also

lead to their increased use. Interviewees from the FRA added that the FD EAW and ESO need to

communicate with each other better. An academic was however more pessimistic. Judicial

authorities currently do not possess the creativity to make use of alternatives, such as the transfer of

proceeding, supervision orders or alternative sentences. In their view, there was still a degree of

narcissism on the side of national authorities not wanting to share or transfer ‘their’ cases. In addition

they criticised the CJEU for not putting enough flesh on the bone of the AFSJ in terms of putting the

citizen at its heart within a single legal area. The practice still is mostly two jurisdictions fighting over

a person. In this context it is worth citing the sobering conclusion by Joao Costa on the enduring

State-centric approach in the criminal justice area:

Despite the increase in the transnational reach of human conduct, the paradigm of criminal justice

remains pointedly State-centric: as in the early days of the Wesphalian paradigm, it is still essentially

States that prescribe and enforce criminal offences, and few or no signals exist which allow us to

anticipate significant changes in this respect.

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Also, on the side of NGOs scepticism prevailed. In their view the ESO is only mentioned by the

Commission as an excuse not to put forward EU legislation in the area of pre-trial detention. R ight

from the start there have been serious concerns about whether or not it is workable. There is also

very limited practical experience. Though prosecutors seem to be open to using the EIO, again no

experience of using it as an alternative to the EAW had been reported by them.

EU measures approximating definitions and sanctions in the area of substantive

criminal law

The relationship between the FD EAW and EU measures approximating definitions and sanctions in

the area of substantive criminal law is established by the 32 categories of crime for which double

criminality may no longer be verified in accordance with Article 2(2) of the FD EAW. As discussed,

when talking about the effective achievement of the objective of the FD EAW to limit the double

criminality principle, several offences listed in Article 2(2) of the FD EAW are described in rather

vague terms. A representative of the Council secretariat argued in favour of the EU proceeding with

the harmonisation of substantive criminal law, notably with regards to the 32 list offences. With

reference to the CJEU’s Advocaten voor de Wereld

381

case, discussed in section 2.2.3., a representative

of Eurojust submitted that there is no need for prior harmonization of the list offences. An academic

interviewee furthermore pointed out that they did not observe practical cases where there were

concerns that would substantiate the need for harmonisation.

EU measures approximating the rights of individuals in criminal proceedings

As regards the coherence with EU measures approximating the rights of individuals in criminal

proceedings, a representative of the Council secretariat pointed out that Member States could make

a greater effort to transpose and implement the relevant directives timely and correctly. Again, they

indicated that the Commission should make use of its power to start infringement procedures for

incorrect transposition. NGO representatives were of the opinion that the Commission had been too

weak on enforcement of the procedural rights directive. They only did so when it was part of a wider

380

M.J. Costa, Extradition Law, Reviewing Grounds for Refusal from the Classic Paradigm to Mutual Recognition and

Beyond, European Criminal Justice series, Vol. 2, Brill Nijhoff, 2019, p. 325

381

CJEU judgment of 3 May 2007, Case C-303/05, Advocaten voor de Wereld [2007] ECR 3633.

EPRS | European Parliamentary Research Service

political objective (for instance enforcing the rule of law). They expressed concern regarding this

lack of enforcement action, as it might send the message to practitioners that EU legislation in this

area is only to be seen as guidance. They also pointed at a lack of practical support, for example

making sure that practical assistance is provided with finding a lawyer in the issuing Member State.

3.5. Relevance

In this context, the question may be raised as to whether the objectives of the FD EAW are still

relevant in light of developments that have taken place since its adoption in 2002, notably

digitalisation and globalisation? And more generally, do its original objectives still correspond to

the (EU) needs in the area of judicial cooperation?

As a preliminary observation, it should be pointed out that the institutional context has changed

significantly. The FD EAW was adopted in 2002. This was prior to the accession of 10 new Member

States in 2004, Romania and Bulgaria in 2007, Croatia in 2013, and the departure of the UK in 2020.

With regards to the UK’s central role in promoting the principle of mutual recognition, it might be

argued that the balance between mutual recognition and harmonisation might tilt in a different

way with the current constellation of Member States than it did in 2002. It should also be reminded

that since the entry into force of the Lisbon Treaty in 2009, the European Parliament has equal

legislative powers with the Council of Ministers in the area of police and judicial cooperation.

382

has already exercised these powers in key pieces of legislation in the area of judicial cooperation

regarding cross-border evidence gathering,

383

freezing and confiscation measures,

384

definitions

and sanctions, rights of individuals in criminal procedure and the mandates of the relevant EU

agencies. This contributes to better law-making, trust and legitimacy in this area.

385

As Mitselegas

writes:

382

S. Carrera, E. Guild (CEPS), Implementing the Lisbon Treaty Improving the Functioning of the EU on Justice and Home

Affairs, Study conducted for the European Parliament, DG IPOL Policy Department C, 2015

383

Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European

Investigation Order in criminal matters, OJ L 130/1 of 1 May2014.

384

Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual

recognition of freezing orders and confiscation orders, OJ L 303/1 of 28 November 2018.

385

W. van Ballegooij, Area of freedom, security and justice: cost of non-Europe, EPRS, European Parliament, 2019

Key findings

The FD EAW was adopted in 2002. This was prior to the accession of 13 new Member States and the recent

departure of the UK. Since 2002, the European Parliament has achieved and exercised equal legislative

powers with the Council as regards the field at stake. As long as the FD EAW is not ‘Lisbonised’, it lacks the

democratic legitimacy provided by the proper involvement of the European Parliament in its adoption. In

terms of the serious crimes addressed, it is noted that terrorism continues to constitute a major threat to

security in EU Member States. At the same time globalisation and digitalisation have led to forms of

cybercriminality that one could not have imagined in 2002 yet. Cooperation between judicial authorities

can be improved through the use of modern techniques. Technological advancement could also improve

the efficiency and fundamental rights compliance of the EAW procedure. A small bright spot in the COVID-

19 crisis is that it has forced Member States to enhance the use of modern technologies in the criminal

justice area. The above-mentioned option of hearing a requested person through video-link should

therefore be more accessible. Trial by video-link is much more controversial and difficult to organise at

the moment. However, it cannot be disregarded altogether, particularly in minor and simple cases in

terms of evidence, where the defendant consents to this modality and the effective exercise of defence

rights is guaranteed.

European Arrest Warrant

In terms of institutions, the entry into force of the Lisbon Treaty signified the supranationalisation of

European criminal law, with EU institutions assuming their full EU powers in the field. The

contribution of two of these institutions, the European Parliament and the CJEU, has been

instrumental in the changing landscape of European criminal law and a greater emphasis on the

examination of the impact of EU intervention in the field on fundamental rights.

386

Inversely, as long as the FD EAW is not ‘Lisbonised’, we continue to live with an instrument that has

been adopted without an impact assessment,

387

and the democratic legitimacy provided by the

proper involvement of the European Parliament. Another factor to be taken into account is the

adoption of the EPPO.

388

The handling European delegated prosecutor should be entitled to issue

or request an EAW within the area of competence of the EPPO.

389

Should the FD EAW be reviewed

in the light of this development, particularly in case the competence of the EPPO is expanded to the

fight against terrorism?

390

In this regard, ideas on how to review the FD EAW and EU criminal justice

more generally, presented in initiatives such as the ‘manifesto on European criminal procedure

law’

391

should be recalled.

Europol finds that terrorism continues to constitute a major threat to security in EU Member

States.

392

At the same time, this and other forms of serious and organised crime are an increasingly

dynamic and complex phenomenon. Whilst traditional crime areas such as international drug

trafficking remain a principal cause of concern, the effects of globalisation in society and business

have facilitated the emergence of significant new variations in criminal activity. This includes

migrant smuggling and trafficking in human beings, money laundering and ‘cybercrimes’

393

such as

the online distribution of child abuse, terrorist, racist and xenophobic content.

394

Is the choice made

for what are deemed serious crimes in accordance with Article 2(2) FD EAW still accurate in this

context?

Responses received from the Council secretariat, Commission and Eurojust confirm that

cooperation between judicial authorities can be improved through the use of modern techniques,

such as digital transfer of certificates. This is already being addressed, e.g. through the e-evidence

digital exchange system (e-EDES).

395

The exchange of digital data is also very useful in surrender

procedures, for instance to facilitate a proper identification of the person. Again, Eurojust can

provide further support to judicial authorities in this process. The ECBA, defence lawyers and NGOs

point out that in case the EAW has been issued for a criminal prosecution, electronic tools could be

386

V.Mitselegas, ‘20 years from Tampere. The Constitutionalisation of Europe’s Area of Criminal Justice’, in S. Carrera, D.

Curtin and A. Geddes (Eds.), 20 years anniversary of the Tampere Programme, Europeanisation Dynamics of the EU Area

of Freedom, Security and Justice, European University Institute, 2020, p. 211-216, at p. 212.

387

F de Londras, ‘Reviewing the Effectiveness of EU Counterterrorism Policies’ in S Carrera and V Mitsilegas (eds),

Constitutionalising the Security Union, Effectiveness, Rule of Law and Rights in in Countering Terrorism and Crime, CEPS,

2017, p. 45–53; W van Ballegooij and P Bakowski, The Cost of Non-Europe in the Fight against Terrorism, EPRS, 2018, ch

1.3.1.

388

Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of

the European Public Prosecutor’s Office (‘the EPPO’), OJ L 283/1 of 31 November 2017.

389

Ibidem, Article 33.

390

Communication from the European Commission to the European Parliament and the European Council, A Europe that

protects: an initiative to extend the competences of the European Public Prosecutor’s Office to cross-border terrorist

crimes, COM (2018) 641 of 12 September 2018.

391

European Criminal Policy Initiative, A Manifesto on European Criminal Procedure Law, Stockholm University Press, 2014.

392

Europol, Terrorism Sitiuation and Trend Report, 2019

393

Europol, Internet Organised Crime Threat Assessment (IOCTA), 2019

394

Europol, Serious and Organised Crime Threat Assessment (SOCTA), 2017.

395

e-Evidence Digital Exchange System: state of play, Council document 6429/1/20 of 4 March 2020.

EPRS | European Parliamentary Research Service

used more as an alternative to surrender and to prevent the person from having to spend extensive

periods in pre-trial detention in the issuing Member State after surrender. As indicated, the option

of the issuing judicial authorities hearing the requested person by video-link in accordance with

Article 18 (1) (a) FD EAW is currently underused. A precondition for such a hearing is that the qu ality

of the video-link is ensured. Furthermore, the whole room should be visible, including the

prosecutor, judge and defence lawyer in the issuing Member States (which will need to be arranged

for). In an interview, arraignment is possible, because it is only the judge who is present. If conducted

appropriately, hearing by video-link can serve as a better alternative to a temporary transfer or

waiting for a long time to get the arraignment done in the issuing Member State. Trial by video-link

is much more difficult at the moment. In any event it would require the consent of the defendant.

However, it cannot be disregarded altogether. In many minor cases, like driving under influence, the

court does not need the defendant to be physically present, the defendant might be willing to

confess.

396

3.6. EU-added value

The European Commission measures the added value of EU criminal law based on the extent to

which it strengthens the confidence of citizens in exercising their free movement rights, enhances

mutual trust among judiciaries and law enforcement, ensures the effective enforcement of EU law

in areas such as the protection of the environment or illegal employment and ensures a consistent

and coherent system of legislation.

397

Under the heading ‘EU strategy on criminal justice’ the

Commission’s DG Justice’s website furthermore states: ‘Serious organised crime is often committed

across borders. To prevent “safe havens” for criminals, EU countries’ laws should be more aligned.’

398

The Council

399

and the Parliament

400

have not developed general guidelines on the added value of

EU criminal law, but have so far limited themselves to guidelines for the adoption of substantive

criminal law.

401

These elements do not yet add up to a coherent strategy for the development of an

EU criminal justice area based on the rule of law, in which all interests, including that of the

defence,

402

are properly represented. There is an inconsistency in thinking about judicial

cooperation within the EU, and certainly within the Schengen area, in terms of people ‘hiding

396

Interview with a Portuguese defence lawyer.

397

European Commission, ‘Towards an EU Criminal Policy: Ensuring the Effective Implementation of EU Policies through

Criminal Law’ (Communication) COM (2011) 573, 5.

398

European Commission DG Justice website, EU Strategy on Criminal Justice.

399

‘Council Conclusions on Model Provisions Guiding Council’s Criminal Law Deliberations’ (30 November 2009)

www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/111543.pdf.

400

European Parliament resolution of 22 May 2012 on an EU approach to criminal law (2010/2310(INI)), P7_TA (2012)0208.

401

cf A Klip, European Criminal Law, An Integrative Approach, 3rd edn (Cambridge, Intersentia, 2016) 241–43.

402

For elements to assess effective criminal defence in a particular jurisdiction, see E Cape, Z Namoradze, R Smits and T

Spronken, Effective Criminal Defence in Europe, Intersentia, 2010, p. 5, 6.

Key findings

The European Commission’s indications for assessing the added value of EU criminal law do not offer

sufficient guidance for assessing the added value of the FD EAW. However, it is clearly a founding stone

for the establishment of an area of freedom, security and justice. Its level of cooperation could not have

been achieved by Member States working on a bi- or multilateral level without having this objective in

mind. This may be illustrated by the relationship with non-EU Schengen States and the negotiations with

the UK after Brexit.

European Arrest Warrant

behind borders’. The whole purpose of the AFSJ is for there to be a common criminal justice area

based on a genuine EU criminal policy. In the case of suspects, the presumption of innocence should

apply. In the case of convicted persons who are nationals or residents of the executing Member

State, it is in the interest of their social rehabilitation to stay behind those borders as long as they

serve their sentence, so that impunity is avoided. However, the FD EAW is clearly a founding stone

for the establishment of an AFSJ. Its level of cooperation could not have been achieved by Member

States working on a bi- or multilateral level without having this objective in mind. This may be

illustrated by the relationship with non-EU Schengen States and the negotiations with the UK after

Brexit discussed in Section 2.7.

EPRS | European Parliamentary Research Service

4. Recommendations as to how to address the shortcomings

identified

Upon the request of the rapporteur, this European implementation assessment also contains a

number of recommendations on how to address the shortcomings it has identified. For the sake of

consistency, the recommendations are streamlined in accordance with the evaluation criteria:

effectiveness, compliance with EU values and fundamental rights, efficiency, relevance, coherence

and EU added value. They are joined by short explanations referring back to the findings of the

previous chapters. In the medium term, for reasons of democratic legitimacy, legal certainty and

coherence with other judicial cooperation and procedural rights measures, a ‘Lisbonisation’ of the

FD EAW is recommended. This process could be part of a proposed EU judicial cooperation code.

Such an initiative could also contain legislative proposals on the prevention and resolution of

conflicts of competence and the transfer of proceedings.

In line with more general suggestions on how best to evaluate the transposition and application of

measures in the area of judicial cooperation in criminal matters,

403

the final decision on embarking

on such a comprehensive review should take into account the compliance assessment that will

shortly be presented by the European Commission and the mutual evaluations the Member States

joined in the Council are currently conducting. In addition, the European Parliament could also

consider requesting the Commission to conduct a ‘fitness check’ evaluating and identifying gaps

and inconsistencies in order to consider possible ways of simplifying and streamlining the current

EU framework in the area of judicial cooperation in criminal matters.

404

A similar exercise was already

conducted in the area of legal migration.

405

Another, compatible option would be for it to launch a

legislative own-initiative report in accordance with Article 225 TFEU, that would result in concrete

recommendations towards the Commission on how to review the FD EAW. Finally, the European

Parliament could conduct further implementation reports on related judicial cooperation

instruments, notably EIO, the FD on in absentia decisions, the FD on Transfer of Prisoners, the FD on

PAS and the ESO as well as the various measures discussed in Section 2.3. concerning the rights of

suspects, including requested persons.

4.1. Effectiveness

The Commission could initiate targeted infringement proceedings against those

Member States which have incorrectly or deficiently transposed the FD EAW.

Explanation: the 2014 European Commission response

406

to Parliament's legislative own-initiative

argued that proposing legislative changes to the FD EAW would be premature in light of the ability

of the Commission to start infringement procedures. No such infringement procedures were

403

P. Albers, P. Beauvais, J.F. Bohnert, M. Böse, P. Langbroek, A. Renier and T. Wahl, Towards a common evaluation framework

to assess mutual trust in the field of EU judicial cooperation in criminal matters, 2013, short version of the final report at

p. 56: By making use of several evaluation methods and sources of data the reliability of the findings of the evaluation

will increase, which will also lead to better information that can be used for decision makers to continue with a

(European) policy or to adjust the policy directions in the area of judicial cooperation in criminal matters.

404

European Commission, Better Regulation Toolbox nr. 43, What is an evaluation and when is it required?

405

European Commission, Legal Migration Fitness check; W. van Ballegooij, E. Thirion, The Cost of non-Europe in the area

of Legal Migration, EPRS, European Parliament, 2019.

406

Commission response to text adopted in plenary SP (2014) 447.

European Arrest Warrant

brought over the last six years. The focus could be on deficiencies that have led to practical problems

in in judicial cooperation.

The Commission could initiate infringement proceedings against those Member States

which have incorrectly or deficiently transposed the provisions of the procedural rights

directives, which guarantee the rights of requested persons.

Explanation: the 2014 European Commission response

407

to Parliament's legislative own-initiative

argued that proposing legislative changes to the FD EAW would be premature in light of the

adoption of 'common minimum standards of procedural rights for suspects and accused persons

across the European Union'. As discussed in Sections 2.3, 3. 3 and 3.4, the Member States have so far

not made sufficient efforts to transpose and implement EU procedural rights directives timely and

correctly. There are notably shortcomings in transposition, in particular with regards to the

appointment of a lawyer and access to the case file in the issuing Member State prior to surrender.

In absence of the Commission starting infringement proceedings, it is to be feared that practitioners

will only see EU legislation in this area as guidance. There is also a lack of practical support with

finding a lawyer in the issuing Member State.

Assistance and coordination by Eurojust to the judicial authorities in the Member States

could be further promoted and funded through the EU budget

Explanation: Eurojust plays a crucial role in facilitating judicial cooperation in terms of coordinating

prosecutions and resolving conflicts of competence, facilitating the issuance of EAWs, ass ist ing in

the process of requests for additional information and guarantees from the issuing Member State,

ensuring that the timelines for the surrender procedure are met and by offering practical guidelines

and overviews of relevant CJEU case law. There is still untapped potential in terms of making use of

this EU agency’s services. At the same time, it should continue to receive adequate funding under

the EU budget.

Training and exchanges of judicial authorities could be further promoted and funded

under the EU budget

Explanation: Many of the problems related to the practical operation of the EAW relate to a lack of

awareness of the procedures, including the proportionality test contained in the Commission’s

handbook, how to correctly fill out the EAW form, the requirements of CJEU case law and awareness

of the judicial systems of the other EU Member States. Training by the EJtN,

408

ERA

409

and

exchanges

410

help overcome these obstacles.

The Commission (in cooperation with Eurojust, the EJN/EJtN and the FRA) could

develop and regularly update a ‘handbook on judicial cooperation in criminal matters

within the EU’

Explanation: The Commission handbook on how to issue and execute a European Arrest Warrant

411

has been well received by practitioners. However, it cross-refers to many other judicial cooperation

instruments, such as the FD on Transfer of Prisoners on which a separate handbook was produced

407

Ibidem.

408

European Judicial Training Network.

409

ERA, events on criminal law.

410

EJtN, The Exchange Programme for Judicial Authorities.

411

Commission Notice, Handbook on how to issue and execute a European Arrest Warrant, C(2017) 6389 final of

28 September 2017.

EPRS | European Parliamentary Research Service

recently,

412

fundamental rights and procedural rights measures as well as CJEU case law on which

other organisations like Eurojust, EJN, EJtN and FRA also report. Furthermore, it quickly runs out of

date. A joint effort could be made to produce and regularly update an online handbook o n ju dicial

cooperation in criminal matters within the EU.

A database could be developed containing the national jurisprudence on the EAW

Explanation: As discussed in Section 3.1. there is limited awareness amongst judicial authorities of

EAW decisions taken in other Member States. Thereby, it is not clear how EU and national law is

interpreted in practice. Opportunities for mutual learning and best practices are lost. National

jurisprudence on the EAW is not systematically published (and translated). Databases containing

national case law do exist in other domains of EU law, either administered by the EU directly or

supported through EU funding. Examples include judicial cooperation in civil matters,

413

as ylum

414

and fundamental rights.

415

4.2. Compliance with EU values including fundamental rights

Judicial authorities could be systematically involved in the development of EU

monitoring mechanisms on democracy, the rule of law and fundamental rights

Explanation: As discussed in Section 2.2.6. and 3.2., the CJEU has tasked the executing judicial

authorities with the responsibility to assess whether in the case at hand there are substantial

grounds for believing that the requested suspect will run the real risk of being subject to a breach

of the essence of the right to a fair trial, in the context of a more general threat to the rule of law in

the issuing Member State. For this authority to do so it will need to rely on tailor made and up-to-

date information provided by EU monitoring mechanisms.

EU Member States should comply with their international obligations by properly

executing ECtHR decisions and following up on CPT and NPM reports

Explanation: As discussed in Section 2.2.6 .and 3.2. the detention conditions in 11 Member States

have been questioned in the context of EAW proceedings. These questions reflect a number of

ECtHR judgments and critical CPT reports on those countries. The lack of compliance with

international obligations undermines mutual trust and therefore the basis for mutual recognition.

The European Parliament has made a similar call in its 5 October 2017 resolution on prison systems

and conditions.

416

All EU Member States should ratify the Optional Protocol to the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and

set up independent and effective National Preventive Mechanisms (NPMs)

Explanation: As discussed in Section 3.2. NPMs are the independent monitoring bodies operating on

the ground in Member States on a permanent basis, hence they are best positioned to provide

continuous monitoring as well as to follow up on the implementation of recommendations by

international monitoring bodies such as the CPT. Setting up an NPM, however, is an obligation

412

Commission notice, Handbook on the transfer of sentenced persons and custodial sentences in the European Union,

OJ C 403/2 of 29 November 2019, p. 34

413

Eur-lex, JURE database.

414

European Asylum Database.

415

e.g. the FRA database on anti-Muslim hatred

416

European Parliament resolution of 5 October 2017 on prison systems and conditions, P8_TA(2017)0385 ,para. 1.

European Arrest Warrant

deriving from the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (OPCAT), but not all EU Member States have ratified O PCAT.

The European Parliament has made a similar call in its 5 October 2017 resolution on prison systems

and conditions.

417

The FRA could be requested to conduct a comparative study on the follow-up in the

issuing Member States, to offer assurances as regards detention conditions in the

context of EAW procedures

Explanation: As discussed in Section 3.2., there is currently no mechanism in place to ensure a proper

follow-up of assurances provided by issuing judicial authorities after surrender. An FRA study on the

matter would be a logical complement to the criminal detention database

418

it recently launched.

On the basis of its results, this study should provide recommendations on how to best guarantee

compliance with assurances provided by issuing Member States.

EU funding to modernise detention facilities in the Member States should be exploited

Explanation: As discussed in Section 3.2, in accordance with paragraph 24 of the 2018 Coun cil

conclusions on 'promoting mutual recognition by enhancing mutual trust',

419

the Commission is

invited to promote making optimal use of the funds under the EU financial programmes, in order to

modernise detention facilities in Member States and support the Member States in addressing the

problem of deficient detention conditions. The European Parliament has made a similar call in its 5

October 2017 resolution on prison systems and conditions.

420

The Commission could propose EU legislation in the area of pre-trial detention

addressing procedural requirements in terms of reasoning for pre-trial detention and

regular reviews, as well as material detention conditions

Explanation: As discussed in Section 2.2.6. and 3.2., adopting EU legislation in the area of pre-trial

detention and the detention conditions of sentenced persons has added value, notably in terms of

its enforceability. However, the Council of Europe standards and ECtHR case law should be taken as

a minimum and built upon to accommodate the specific context of transnational cooperation on

the basis of mutual recognition within a common AFSJ. For it to have a real impact, a future

instrument on pre-trial detention should not only address procedural requirements in terms of

reasoning for pre-trial detention and regular reviews, but also material detention conditions. Given

the lack of a separation in practice between pre-trial and sentenced detainees such a measure could

have a positive impact on detention conditions overall.

417

European Parliament resolution of 5 October 2017 on prison systems and conditions, P8_TA(2017)0385 ,para. 1, recital

418

FRA, criminal detention in the EU.

419

Council conclusions on mutual recognition in criminal matters-'Promoting mutual recognition by enhancing mutual

trust', OJ C 449 of 13 December 2018, pp. 6-9.

420

European Parliament resolution of 5 October 2017 on prison systems and conditions, P8_TA(2017)0385 ,paras 7 and.

67.

EPRS | European Parliamentary Research Service

4.3. Efficiency

The use of EAWs for low or medium crimes should be reconsidered

Explanation: As discussed in sections 2.1.2., 3.3. and 3.4, for these cases often in practice, usually the

person will not be put in pre-trial detention in the issuing Member States nor given a prison

sentence. Issuing an ESO will in most cases be a better option.

The EAW should not be issued for questioning

Explanation: As discussed in sections 2.1.2. and 3.3., there are still some cases where a suspect

appears to be wanted for questioning, rather than prosecution. Here another cooperation

mechanism (the EIO) could be used.

The proportionality test to be conducted by judicial authorities could be revised and

further clarified in the light of CJEU case law and comparable provisions in the EIO

Explanation: As discussed in sections 2.1.2. and 3.3, practitioners remain divided on the need for and

substance of the proportionality test to be conducted by the issuing judicial authorities (with

reference to CJEU case law, which would need further clarification on this point, potentially also

referring to the EIO in which a proportionality test in the issuing Member State was included). As a

first step, this could be done in the relevant section of the ‘handbook on judicial cooperation in

criminal matters within the EU’.

Access to a defence lawyer in the issuing Member State should be guaranteed; this

defence lawyer should be able to access the case file prior to surrender

Explanation: As discussed in sections 2.1.2., 2.3. and 3.3, it is important for a requested person to

have access to a lawyer in the issuing Member State and in some cases (where surrender would be

disproportionate) for this lawyer to encourage the withdrawal of the EAW. In practice, however, it is

often hard for a requested person to get effective access to a lawyer in the issuing state.

Furthermore, the inability of a lawyer to access information on the case in the issuing state can make

it impossible for them to provide effective assistance.

4.4. Coherence

The Commission could adopt a communication discussing the list of 32 ‘serious crimes’

referred to in Article 2(2) FD EAW, relevant EU harmonisation measures and their

national transposition. This communication should also assess the necessity and

proportionality of adopting or revising the definitions and sanctions of these offences

at EU level. Where deemed appropriate, the Commission should suggest updates to the

list.

Explanation: As discussed in section 2.2.2. and 3.4., the distinct vagueness of the list of 'serious

crimes' referred to in Article 2(2) FD EAW has led to questions regarding the proportionality of letting

go of the double criminality requirement in these cases, particularly given that in accordance with

Article 83(1) TFEU the EU can establish only 'minimum rules' concerning the definition of criminal

offences and sanctions. And it is not those minimum definitions that matter; but the national

definitions. Furthermore, as discussed in section 3.5., globalisation and digitalisation have had an

influence on this and other crimes, including forms of cybercriminality that one could have not

imagined in 2002. Bearing in mind the European Parliament’s resolution on an EU approach to

European Arrest Warrant

criminal law,

421

the practical need for harmonising the definitions and sanctions for these offences

needs to the discussed further.

The Commission could propose an EU judicial cooperation code in criminal matters

Explanation: the 2014 European Commission response

422

to Parliament's legislative own-initiative

argued that proposing legislative changes to the FD EAW would be premature in light of other

mutual recognition instruments 'that both complement the European Arrest Warrant system and in

some instances provide useful and less intrusive alternatives to it'. As discussed in section 2.1.2. and

3.4, the EAW should be seen as a tool for surrender to be used within the criminal proceedings of

the Member States as a subsidiary measure to other, less intrusive options, in the spirit of a common

European judicial area guided by the objective of social rehabilitation. However, too often Member

States’ legislation and practitioners see it as a tool to obtain the person for the benefit of their

criminal proceedings, or to obtain execution of their sentence. This is visible through the lack of use

of the CoE Convention on Transfer of Proceedings and the limited use of alternatives to issuing an

EAW. In a domestic criminal setting, alternative tools would be considered as they are part of the

same code of criminal procedure. At EU level such a code is lacking, starting from measures on the

prevention and exercise of criminal jurisdiction

As part of the EU judicial cooperation code, the Commission could put forward a

legislative proposal on the prevention and resolution of conflicts of competence

Explanation: As discussed in Section 2.2.4., practitioners

423

and academics

424

have called for EU

harmonisation initiatives in the area of conflicts of jurisdiction and ne bis in idem to be revived. In

2017, the European Law Institute proposed three legislative policy options

425

for filling the gaps in

the current EU legislative framework. The proposals' added value is discussed both from the

perspective of strengthening the fundamental right of those living in the AFSJ and ensuring the

good administration of justice

As part of the EU judicial cooperation code, the Commission could put forward a

legislative proposal on transfer of proceedings

Explanation: As discussed in Section 2.1.2., in accordance with such an instrument, in relevant cases

the criminal proceedings could be transferred to the Member State where the suspect is residing,

thereby offering an alternative to issuing an EAW. As discussed in Section 3.4, the relevant Council

of Europe instrument is currently not applied. It should be included in an overall EU toolbox for

judicial cooperation

4.5. Relevance

Technological advancement could be used improve the efficiency and fundamental

rights compliance of the EAW procedure

421

European Parliament resolution of 22 May 2012 on an EU approach to criminal law (2010/2310(INI)), P7_TA (2012)0208.

422

Ibidem.

423

European Criminal Bar Association Initiative 2017/2018 “Agenda 2020: A new Roadmap on minimum standards of

certain procedural safeguards”, measure E, conflicts of jurisdiction and ne bis in idem.

424

M. Wasmeier,’ Ne bis in idem and the enforcement conditions, balancing freedom, security and justice?’ New Journal of

European Criminal Law, 2014, vol. 4, p. 534-555.

425

European Law Institute, Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in

criminal matters in the European Union, 2017.

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Explanation: As discussed in section 3.5., more use could be made of the option of hearing the

requested person by video-link. If conducted appropriately, such a hearing can serve as a better

alternative to a temporary transfer or a long waiting time to get the arraignment done in the issuing

Member State.

4.6. EU added value

The Commission could adopt a communication presenting a coherent strategy for the

development of an EU criminal justice area

Explanation: As discussed in section 3.6, the European Commission measures the added value of EU

criminal law based on the extent to which it strengthens the confidence of citizens in exercising

their free movement rights, enhances mutual trust among judiciaries and law enforcement, ensures

the effective enforcement of EU law in areas such as the protection of the environment or illegal

employment and ensures a consistent and coherent system of legislation. Under the heading ‘EU

strategy on criminal justice’ the Commission’s DG Justice’s website furthermore states that ‘serious

organised crime is often committed across borders. To prevent “safe havens” for criminals, EU

countries’ laws should be more aligned.’ These elements do not add up to a coherent strategy for

the development of an EU criminal justice area based on the rule of law, in which all interests,

including that of the defence, are properly represented.

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Annex II: European Implementation Assessment on the

European Arrest Warrant – Questions for Interviewees

European Implementation Assessment on the European Arrest Warrant

Questions for interviewees

European Parliamentary Research Service, EVAL unit, March 2020

Transposition problems and their practical implications

Question 1

It appears that there are significant differences in the ways in which Member States have transposed

the provisions of the Framework decision on the European Arrest Warrant (FD EAW). Which

provisions are mainly concerned? Which differences in transposition cause the most problems in

practice?

Relevance

Question 2

Is the FD EAW still relevant in light of developments that took place since its adoption in 2002,

notably digitalisation and globalisation? Do its original objectives still correspond to the (EU) needs

in the area of judicial cooperation?

Effectiveness

Question 3

When contrasted with pre-existing extradition arrangements between EU Member States.

1. Has the FD EAW succeeded in achieving its stated objectives:

a) Speeding up procedures (recital 1, taking into account the relevant Commission statistics

b) Removing the complexity and potential for delay inherent in extradition procedures (recital

5)?

c) Implementing the principle of mutual recognition (recital 6)?

o As regards limiting the application of the double criminality requirement

o As regards limiting the nationality exception

d) Ensuring that an EAW is subject to sufficient controls by a judicial authority (recital 8)?

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Question 4

In accordance with recital 10 to the FD EAW, ‘the mechanism of the European arrest warrant is based

on a high level of confidence between Member State’, notably as regards their compliance with EU

values. This is repeated in Article 1(3) FD EAW

In this context, how do you assess:

a) The actions of EU institutions to monitor and enforce EU values?

b) The interpretation of Article 1(3) by the Court of Justice of the EU?

c) The practical application of this case law by judicial authorities?

Question 5

In accordance with recital 12 to the FD EAW, it ‘respects fundamental rights and observes the

principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of

Fundamental Rights of the European Union’ Furthermore it states that nothing in the FD EAW ‘may

be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has

been issued when there are reasons to believe, on the basis of objective elements, that the said

arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds

of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual

orientation, or that that person's position may be prejudiced for any of these reasons.’

In this context, how do you assess:

a) Compliance of EU Member States with relevant international fundamental rights norms,

including European Court of Human Rights case law?

b) The actions of EU institutions to monitor and enforce fundamental rights?

c) The interpretation of Article 1(3) by the Court of Justice of the EU, notably as regards

detention conditions?

d) The practical application of this case law by judicial authorities?

e) The capacity of practitioners to keep track of CJEU case law?

Efficiency

Question 6

Are the costs for surrender procedures in the Member States based on an EAW justified and

proportionate?

a) From the perspective of the Member State?

b) From the perspective of the victim?

c) From the perspective of the requested person?

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Coherence

Question 7

Is the FD EAW coherent with?

a) UN and Council of Europe instruments in the area of extradition and mutual legal assistance,

notably the European Convention on Extradition and the Convention on the Transfer of

Proceedings in Criminal Matters?

b) EU measures in the area of judicial cooperation in criminal matters, notably on the Transfer

of Prisoners, the European Investigation Order, Financial Penalties and the European

Supervision Order and on Probation and Alternative Sanctions, taking into their

transposition and application?

c) EU measures approximating definitions and sanctions in the area of substantive criminal

law, notably for the 32 categories of crime for which double criminality may no longer be

verified in accordance with Article 2(2) of the Framework decision on the European Arrest

Warrant, taking into their transposition and application?

d) EU measures approximating the rights of individuals in criminal proceedings, notably the

Directives on Interpretation and Translation, the Right to Information in criminal

proceedings, Access to a Lawyer, Suspects who are children, and Legal Aid, taking into their

transposition and application?

Data availability

Question 8

Please provide us with the sources from which you get your data on the implementation of the FD

EAW in the Member States, and the sources on the basis of which you have replied to the questions

posed more generally. Are all of these sources publicly available? For those that are not, could you

share those with us/ EPRS?

On 6 November 2019, the European Parliament's

Committee on Civil Liberties, Justice and Home Affairs

(LIBE) requested authorisation to draw up an own-

initiative implementation report on the Council

Framework Decision on the European Arrest Warrant

and the surrender procedures between Member States

(FD EAW, 2002/584/JHA) (rapporteur: Javier Zarzalejos,

EPP, Spain). The Conference of Committee Chairs gave

its authorisation on 26 November. This triggered the

automatic production of a European implementation

assessment by the Ex-Post Evaluation Unit of the

Directorate for Impact Assessment and European

Added Value, Directorate-General for Parliamentary

Research Services (EPRS).This study is the second of two

publications produced in this context. It presents

conclusions on the implementation of the FD EAW and

recommendations as to how to address the

shortcomings identified, as per the request of the

rapporteur. Both publications are intended to

contribute to the Parliament's discussions on this topic,

improving understanding of the subject, and ultimately

feeding into the implementation report.

This is a publication of the Ex-Post Evaluation Unit

EPRS | European Parliamentary Research Service

This document is prepared for, and addressed to, the Members and staff of the European

Parliament as background material to assist them in their parliamentary work. The content of

the document is the sole responsibility of its author(s) and any opinions expressed herein should

not be taken to represent an official position of the Parliament.

ISBN: 978-92-846-6716-1

DOI: 10.2861/18661

CAT: QA-02-20-356-EN-N

QA-02-20-356-EN-N