European Arrest Warrant

(EAW)

European Union

Schengen Schengen Implementing Convention (SIC) – Articles 59-66

intented to supplement and to facilitate the implementation of the 1957 CoE Convention

Agreement of 26 May 1989 between the EC Member States on the simplification and modernization of methods of transmitting extradition requests

1995 Convention on simplified extradition procedure 1996 Convention relating to extradition 2002 European arrest warrant

Schengen Implementing Convention (SIC)

interruption of prescription - amnesty: ruled by law requesting State only (Article 62)

extradition duty for matters of excise duty, VAT and customs duties (Article 63)

notice included in the SIS in accordance with Article 95: same force as a request for provisional arrest under the 1957 CoE Convention (Article 64)

transmission allowed via Ministry (Article 65)

informal (simplified) procedure possible (Article 66)

1996 Convention relating to extradition

supplementing 1957 CoE Convention on Extradition 1977 CoE Convention on the Suppression of Terrorism SIC

new developments extraditable offences (changes in threshold) Dual criminality rule abolished for terrorism political offence exception abolished fiscal offences - prescription - amnesty: SIC improved extradition of own nationals (to be derogated by declaration) specialty principle abolished (to be derogated by declaration)

Schengen Agreement

Schengen Zone

SIS Functioning

CSIS

SIRENE

SIRENEPortugal

SIRENELuxemburg

SIRENEAustria

SIRENEGreece

SIRENEFrance

SIRENEItaly

SIRENEBelgium

SIRENENetherlands

SIRENEA

GR

PELUX

NL

D

BI F

SISNET

SISNET

CSIS Central Schengen

Information System

NSIS National Schengen Information Systems

Germany

Spian

Central computer in

Strasbourg

S

SIRENESweden

IS

SIRENE

ICELAND

Dk

SF

N

SIRENEDenmark

SIRENEFinland

SIRENENorway

Schengen Agreement Application Convention (SAAS)

ALERTS in the SIS

Art. 95 persons wanted for arrest for extradition purposes

Art. 96 third country nationals refusing entry into the schengen area or deportation, expulsion or repatriation matters

Art. 97 missing persons or person who temporarilly need to be placed unter police protection in order to prevent threads

Art. 98 information on witnesses or persons summoned to appear before a judicial authority

Art. 99 discreet surveillance on persons or vehicles

Art. 100 informations on stoles vehicles, stolen or misappropriate firearms etc.

InterpolInterpol

Red notice – to seek the arrest or provisional arrest of a Person with a view to extradition based on an arrest warrant

Orange notice – to warn police, public entities and other international organizations of dangerous materials, crimal acts or events that pose a potential threat to public safety

Green notice – to provide warnings about persons who have committed criminal offences and are likely to repeat these crimes

Blue notice – to collect aaditionalInformation about a person‘s identityOr illegal activities in relation to a criminal matter

Yellow notice – to help locate missing persons, especially minors

Black notice – to seek information about unidentified bodies

Differences between the SIS and Interpol alerts The SIS alert guarantees almost real-time transmission

of informations to all national SIS bureaus

Art. 95 SAAS obliges all contracting parties prior to issuing an alert, to check whether the arrest is authorized under the national legislation of the requested Contracting parties

Same legal basis in all SIS states

In SIS: Strict data protection

SIS is prior to an Interpol for EU countries

Background to the EAW:

• 1999: Tampere European Council

conclusions (35)

• 2000: Programme of measures to implement

the principle of mutual recognition in

criminal matters

• 2001-09-11

based on mutual recognition

Mutual recognition of judicial decisions in criminal matters

Only in the European Union Principle: a decision issued by a judge in Member State

A must be executed in Member State B as if it had been issued in that Member State B

= « free circulation » of judicial decisions The principle was adopted in 1999 but is implemented

step by step

3. Mutual recognition of judicial decisions in criminal matters

Supposed to be a radical change compared to the previous regime :- Full « judiciarisation » of the procedure : the governments can not be

involved in individual cases- Partial abolition of the requirement of double criminality- Grounds of refusal strictly defined (full abolition of the exception for

political offence)- Specific timelimits- Specific form: a « warrant » or a « certificate »

Works well with the European Arrest Warrant, less convincing for the moment for other types of judicial decisions work in progress…

Mutual recognition of judicial decisions in criminal matters

Why is mutual recognition limited to the European Union ?

Different level of integration EU cooperation = political cooperation Monitoring of EU accession

Nevertheless, not always easy to justify that difference in the Council of Europe

Objectives

• Political: further the creation of an area of freedom, justice and

security

– free movement of presentence and final decisions in criminal matters

• Practical: reduce delays and complexity of extradition procedures between the Member States

Guiding principles

• Surrender pursuant to

an EAW should

become a judicially

controlled process

– primary control takes

place by issuing

judicial authority

– limitation of the role of

competent (i.e.

administrative)

authorities

• Human rights

protection

– based on a high level

of confidence in each

other judicial system -

exceptional suspension

– persecution as ground

of refusal

– safeguard

constitutional

principles

Concept of EAW

Concept of EAW

• Judicial decision issued by a MS with a view to the arrest and surrender of a requested person by another MS

• Two purposes:

– conducting criminal prosecution (suspects)

– executing a custodial sentence or detention order (convicted persons)

Issuing of an EAW

• Any offence punishable in the issuing state

by at least 12 m or for which a

sentence/detention order has been

passed/made of at least 4m

• List of 33 offences: no double criminality if

punishable in the issuing state by at least 3

years

Formal requirements

no extradition documents, but one form, available in all 23 official languages

no evidentiary requirements!

Evidentiary requirements

None under the 1957 CoE convention

- For Continental European States, the issuance of a warrant of arrest within a requesting state, evidences that a judicial authority, within that state, has determined that there is sufficient evidence in the case. On that basis, the authorities in the requested state should be able to accept and rely on that determination and not look behind it to reassess the underlying basis of the decision.

Common Law States

- Common law states may require, in addition to the warrant, the submission of evidence by the foreign state, sufficient to meet a prescribed domestic standard. Many such states have also demanded that the evidence be adduced in a form consistent with the law of the requested state, before extradition will be granted

- => reason: extradition is considered as a genuine new criminal procedure which has to meet all the domestic criterias for criminal prosecution

Transmission of an EAW

• Direct transmission to competent executingauthority:

– find out through EJN

– transmit through secure telecommunicationsnetwork EJN

– if not possible: through Interpol

– in general: any means capable of producingwritten records - allowing to establishauthenticity

Transmission of an EAW

Signaling the EAW through SIS

– transitional period: EAW will still have to be

transmitted

• Central authorities may be made responsible

for the administrative transmission or

reception of EAW’s

Handling of an EAW byexecuting judicial authority

Obligation to arrest person (unless prima

facie ground of non-execution?)

– detention shall be governed by law of executing MS + Article 5 ECHR

– right to counsel + interpreter

Handling of an EAW byexecuting judicial authority:information of person concerned

• Duty to inform the arrested person of theEAW and of its content + of possibility toconsent to surrender

• When EAW in regard of a suspect personmust be heard by a judicial authority inaccordance with the law of the executingMS and with conditions determined byissuing & executing judicial authorities

Handling of an EAW byexecuting judicial authority:delays for decision to surrender

• If person consents, decision needs to betaken within 10 days after consent

• Otherwise:– decision within 60 days after arrest– issuing authority may extend by 30 days byinforming the issuing authority– if time limits are not respected, reasons must begiven

Handling of an EAW byexecuting judicial authority:delays for decision to surrender

• Delays start running at arrest, unless

– 1) privileges/immunities: from the date it is

waived

– 2) speciality: from the day on which the

speciality rules cease to apply

Handling of an EAW byexecuting judicial authority:taking of decision to surrender

Principal obligation for executing state toexecute it- except grounds of non-execution

• Distinction (non-)mandatory grounds

– non-mandatory grounds will depend on thelegislation of the executing MS

– discretion for executing authority?

• In case of refusal: reasoned decision

Handling of an EAW byexecuting judicial authority:taking of decision to surrender

• Mandatory grounds of refusal:

– amnesty

– ne bis in idem (served or no longer executable)

– person under the age of penal responsibility

Handling of an EAW byexecuting judicial authority:taking of decision to surrender

Non-mandatory grounds of execution

– double incrimination when applicable (2)

– other forms of ne bis in idem

– statute-barred offences

– execution of sentence in executing state

– extraterritorial jurisdiction

Dual criminality

the act in question must be a crime in both the requesting and requested states !

historic origin in the 19th century – to protect one‘s citizen from „unjust“ prosecution

different standards in the countries of the 19th/early 20th century about what was a criminal act

extradition was a tool for foreign policy

Handling of an EAW byexecuting judicial authority:taking of decision to surrender

• Three situations where guarantees may be demanded by the executing authority

– in absentia

– life sentences

– return of nationals

Non extradition of nationals

historic background in Continental Europe:

- ancient greek city states and Rome did not extradite their citizens to other States

- up until the early 1800's, extradition was directed almost exclusively to the return of fugitives sought for political or religious offences.

- Catholic/Protestant States were to protect their

citizens from religious prosecution

traditional „safeguards“ in case of non-extradition of nationals „personal jurisdiction“: international law

recognized the criminal jurisdiction for acts of foreigners committed on its territory and acts of its own nationals committed abroad (aut dedere aut iudicare)

recognition of foreign judgements: courts would recognize and enforce a foreign judgement against their own citizen, even if the defendant may not have submitted himself under that jurisdiction otherwise

Anglo-American Law

The historical basis of English & common law criminal jurisdiction is territorial, it being the function of the English criminal courts to maintain the Queen's peace within her realm - Board of Trade v. Owen [1957] A.C. 602

It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territory if we were to punish persons for harmful conduct which did not take place in the UK – Treacy v DPP [1971] AC 537

Handling of an EAW: decision incase of multiple requests

• Due consideration of all circumstances, in particular

– relative seriousness and place of the offences

– respective dates of EAW’s

– suspects or convicted persons

• Decision by executing judicial authority (Eurojust advice) in case of EAW’s – by competent authority in case of concurrence with extradition request from third state

Decision to surrender: remediesavailable

• Framework decision: ???

• Domestic law of executing MS

• Rule 39 of the Rules of the European Court

on Human Rights

Surrender of persons pursuant toan EAW: time limits

• Immediate notification of decision to surrender to the issuing judicial authority

• Surrender as soon as possible, but no later than 10 days after final decision, on date agreed

• In case of unforeseen circumstances agree on new date and surrender within 10 days of that date

Surrender of persons pursuant toan EAW: time limits

• Exceptional temporary postponement for

serious humanitarian reasons

• In case of violation of these time limits:

release

Surrender of persons pursuant toan EAW: postponement

• Possibility to postpone surrender in order to allow prosecution/service of sentence in executing MS

• Alternative: surrender on conditions agreed by executing and issuing judicial authorities

Effect of surrender pursuant toEAW:

• Deduction of period of detention served in

the executing MS

• Speciality principle

• Surrender or subsequent extradition