The Implementation of the European Arrest Warrant: Comparative Research

The Implementation of the European Arrest Warrant: Comparative Research Fair Trials International wishes to thank Allen & Overy LLP for its hard work and support in compiling this comparative research. Thanks to the firm s EU-wide network of offices, we have been able to draw on this wealth of legal expertise to present data on how eight European countries have dealt with fundamental rights issues in their own implementing legislation and case law. Disclaimer: Allen & Overy LLP 2011. All rights reserved. Subject to the following, copyright in the country report pages of this website and all documents available through it belongs to Allen & Overy LLP and/or its affiliated undertakings. Except as expressly permitted below or by applicable law, you may not copy (except to the extent required in order to use this website in accordance with the Legal Notices), store in any medium (including in any other website), distribute, transmit, re-transmit, broadcast, modify, or otherwise make available or communicate to the public any part of this website or systematically extract material from this website or any document available through it or in any other way exploit commercially all or any part of this website or any document available through it without our prior written permission. Copyright in some documents and other material available on the country report pages of this website belongs to third parties (Third Party Documents) and such documents and other material have been produced on this website with the permission of the third party copyright owners. Please check copyright notices on or in respect of individual Third Party Documents. Unless otherwise specified in the copyright notice for a Third Party Document or permitted by applicable law, you may not copy (except to the extent required in order to use this website in accordance with the Legal Notices), store in any medium (including in any other website), distribute, transmit, retransmit, broadcast, modify, or otherwise make available or communicate to the public any part of a Third Party Document or systematically extract material from it or in any other way exploit commercially all or any part of it. You may print or save one copy of any page of the country report pages this website and documents available through it (other than Third Party Documents) for your own personal use. The information within the pages does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP's affiliated undertakings.

Allen & Overy EAW Research: Belgium EUROPEAN ARREST WARRANT (EAW) 1. What is the implementing legislation of the Member State for the Framework Decision on the European Arrest Warrant and surrender procedures between Member States (the Framework Decision)? 1. The Act of 19 December 2003 (published 22 December 2003) concerning the European Arrest Warrant (EAW Act) incorporates the Framework Decision into Belgian law. The EAW Act replaces the Extradition Act of 15 March 1874 and a number of arrest and/or extradition treaties which were applicable between member states of the European Union. 2. What are the circumstances of arrest set out in the implementing legislation? 2. Under Article 10 of the EAW Act, an arrest can be made upon the presentation of (i) a EAW, or (ii) a signalisation in conformity with Article 95 of the Convention Implementing the Schengen Agreement of 19 June 1990. With respect to arrests based on a Schengen signalisation, Article 9 of the EAW Act provides that, for a transitional period, until the Schengen information system is capable of transmitting all the information which is required for a EAW to be valid, an original EAW or certified copy has to be transferred to the Belgian authorities. It is only upon the reception of the EAW that the judicial authorities will be able to reach a decision on the validity of the request. 3. The arrest itself is subject to the requirements of Article 2 of the Act of 20 July 1990 concerning Preliminary Detention. According to this provision, the public prosecutor is in charge of the arrest of the person subject to the EAW. If the case is already pending with an investigating judge, the investigating judge will exercise the competences which are normally entrusted to the public prosecutor in case of arrest. No one can be detained for longer than 24 hours after his or her arrest unless a judge formally intervenes. Furthermore, the following rules have to be observed in case of arrest: 1. the person involved is immediately notified of the decision of the arrest. This notification consists in the oral communication of the decision in the language of the proceedings; 2. an official report is made of the arrest. This official report contains: the decision of the public prosecutor, the measures which have been ordered by the public prosecutor, and the manner in which these have been notified to the person involved; the exact time of the arrest, with detailed mention of the circumstances in which the arrest took place; the exact time of the notification to the person involved of the decision of arrest; 3. What is the procedure for the extradition hearing? (a) Initial hearing and initial decision by the investigating judge within 24 hours of arrest 4. The person subject to the EAW will be heard by an investigating judge within 24 hours of the arrest (initial hearing). Pursuant to Article 11 of the EAW Act the investigating judge will inform the person subject to the EAW of: 1. the EAW and its contents; 2. the possibility of consenting to surrender to the issuing judicial authority; 3. right to be assisted by a legal counsel and by an interpreter in accordance with Belgian national law. PERS_KH-DANIELCA BR:4752292.1 1

Allen & Overy EAW Research: Belgium During the initial hearing the person subject to the EAW can comment on the EAW and explain the factual circumstances of the case, after which the investigating judge will decide to either (i) keep the person detained until a final decision 1 is reached with respect to the execution of the EAW, or (ii) release the person from detention until a final decision is reached with respect to the execution of the EAW. If the investigating judge decides to release the person subject to the EAW, this decision has to be accompanied with a set of measures ensuring that the person involved (i) will not commit any new crimes or offences, (ii) will not flee from the judicial system, (iii) will not collide with third parties, and (iv) cannot tamper with evidence. One of the measures the investigating judge can order is the payment of a deposit. This deposit will be returned after a final decision on the execution of the EAW is reached, on the condition that the person subject to the EAW remained on Belgian territory during the investigation. 5. The decision taken by the investigating judge in conformity with Article 11 EAW Act (an Article 11 Decision) to either (i) keep the person subject to the EAW detained, or (ii) release the person subject to the EAW, provided certain measures are taken, has to be notified to the person subject to the EAW. As a general rule, this Article 11 Decision will remain in force until a final decision is reached with respect to the execution of the EAW, as no appeal can be made against an Article 11 Decision. (b) Insufficient information or mandatory non-execution of the EAW 6. If, after the initial hearing, the investigating judge is of the opinion that the contents of the EAW do not allow the executing authorities to reach a final decision with respect to the EAW, the investigating judge has to request additional information with the issuing authority (Article 15 EAW Act). The investigating judge can determine the date by which this information has to be obtained. 7. Within 24 hours of the arrest and after having heard the person involved, the investigating judge might be of the opinion that there are ground for mandatory non-execution of the EAW. If this is the case, the investigating judge immediately takes a motivated decision ordering non-execution (Article 14 EAW Act). If the public ministry wishes to appeal this decision it has to do so within 24 hours from the date of the decision ordering non-execution. The appeal is lodged with the "chambre d'accusation - kamer van inbeschuldigingstelling 2 " which has to reach a decision within 15 days after the appeal, after having heard the public prosecutor and the person subject to the EAW. Pending the decision in appeal, the person subject to the EAW will remain subject to the Article 11 Decision previously taken by the investigating judge (see 4). If no appeal is lodged, the decision of non-execution of the EAW will take immediate effect and the person who was arrested will be released. In this case, the previous Article 11 Decision taken by the investigating judge will seize to have effect. (c) Hearing and judgement by the "chambre de conseil - raadkamer 3 " 8. Pursuant to Article 16 of the EAW Act, the "chambre de conseil - raadkamer" has to render a judgement on the execution or non-execution of the EAW within 15 days of the arrest of the person subject to the EAW. The person involved and his lawyer will be notified of the day and time of the hearing. They can consult the file of the person subject of the EAW on the day before the hearing. The "chambre de conseil - raadkamer" will ascertain whether: 1. the conditions on the scope of the EAW are fulfilled; 2. one of the grounds for (mandatory) non-execution has to be applied; 1 The final decision is generally made by the "chambre de conseil - raadkamer" (see 8). 2 The criminal court's indictment division (in the UK task performed by the Magistrates Bench) 3 Magistrates at the level of the criminal court who decide upon the release of a person under remand or the extension of the warrant for his arrest. PERS_KH-DANIELCA BR:4752292.1 2

Allen & Overy EAW Research: Belgium 3. certain guarantees have to be given by the issuing member state Scope of the EAW: Article 3 EAW Act 9. Article 3 of the EAW Act repeats Article 2.1 of the Framework Decision and states that "A European arrest warrant may be issued for 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, where a sentence has been passed or a detention order has been made, for sentences of at least four months". Grounds for (mandatory) non-execution: Article 4 to 6 EAW Act 10. The "chambre de conseil - raadkamer" will have to investigate if there are bars to extradition, pursuant to Article 4 to 6 of the EAW Act. Under the EAW Act the following are mandatory bars for extradition: The offence is covered by amnesty in Belgium (and Belgium has jurisdiction). The requested person has been finally judged by a Member State in respect of the same acts and the sentence has been served, is being served or can no longer be executed. Person's age does not allow the person to be held criminally responsible for the crime or offence under Belgian law. The criminal prosecution or punishment is statute-barred according to Belgian law (and Belgium has jurisdiction) There are serious grounds to believe that the execution of the EAW would infringe the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union. The act is not punishable in Belgium (double criminality requirement), with the exceptions provided for in Article 2.2 of the Framework Decision. Under the EAW Act the extradition can be denied (non-mandatory non-execution) in the following cases: The person subject to the EAW is being prosecuted in Belgium for the same act as that on which the EAW is based. The Belgian authorities have decided not to prosecute for the offence on which the EAW is based, or have decided to halt proceedings for the act on which the EAW is based. The person subject to the EAW has been finally judged by a third state in respect of the same acts, provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country. If the EAW has been issued for the purposes of execution of a custodial sentence or detention order, if the Belgian authorities undertake to execute the sentence or detention order (on the condition that the requested person is staying in, or is a national or a resident of Belgium). Where the EAW relates to offences which (i) have been committed in whole or in part on Belgian territory, or (ii) have been committed outside the territory of the issuing member state, and Belgian law does not allow prosecution for the same offences when committed outside of its territory. PERS_KH-DANIELCA BR:4752292.1 3

Allen & Overy EAW Research: Belgium Guarantees to be given by the issuing state: Article 7 and 8 of the EAW Act 11. Article 7 and Article 8 of the EAW Act contain the possibility for the Belgian authorities to make the execution of the EAW dependant on either (i) the condition that the issuing judicial authority gives an assurance to guarantee that a person convicted in absentia will have the right to apply for re-trial, either (ii) the condition that the persons who is the subject of the EAW is returned to Belgium to serve his or her sentence after being convicted in the issuing state. 4. Are there any other grounds for ordering a discharge? 12. Yes, in a number of "conflict" situations: Article 27 EAW Act: if the person who is the subject of an EAW has been previously extradited to Belgium and is protected by the specialty provisions of the extradition treaty between Belgium and the State by which he or she was extradited, the Minister of Justice has to be informed. The Minister of Justice will then ask permission to the extraditing State. Article 29 EAW Act: if multiple EAW's are issued by multiple Member States, the "chambre de conseil - raadkamer" will decide which EAW will be executed. Article 30: if there is a conflicting situation between an EAW and an extradition request from a third State, the federal prosecutor and the government will be informed. The government will then decide whether the EAW or the extradition request will be executed. 5. What success has there been in defendants' reliance on human rights as grounds for refusal to be extradited? 13. As set out above (see 10), the EAW will not be executed if there are serious grounds to believe that the execution of the EAW would infringe the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union. This ground for non-execution is not mentioned in the Framework Decision. The Framework Decision does however, in Article 1.3 state 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". Article 6 of the Treaty on the European explicitly refers to the European Convention on Human Rights (E.C.H.R.). However, consistent jurisprudence of the Belgian "Cour de Cassation - Hof van Cassatie" 4 states that Article 6 E.C.H.R. does not apply to the procedure before the "chambre de conseil - raadkamer" and the "chambre d'accusation - kamer van inbeschuldigingstelling". 14. It is unclear how this ground for refusal to be extradited will be applied in practice. The parliamentary preparatory works to the EAW Act specify that the Belgian authorities cannot make a political assessment of the situation in another member state. The assessment of this ground for refusal thus has to be limited to the specific circumstances of the case. Moreover, there is a presumption in favour of the issuing state, in the sense that the issuing state is presumed to respect human rights 5. This ground of refusal will thus only be used if the person subject to the EAW can seriously allege, based on factual elements, that the extradition to the issuing state would jeopardize his or her human rights 6. 4 Cour de Cassation - Hof van Cassatie, 25 January 2005, P050065N 5 A. WINANTS, "De doorwerking van het EU-Kaderbesluit inzake overlevering", N.C.. 2006, 90 6 Ibid. PERS_KH-DANIELCA BR:4752292.1 4

Allen & Overy EAW Research: Belgium In the case of Ugarte Lopez 7, an alleged Bask separatist, the defence lawyer made it an argument before the "chambre d'accusation - kamer van inbeschuldigingstelling" that the situation in Spanish prisons constituted a ground for refusing the execution of the EAW on the basis of the fundamental rights provision in the EAW Act. The allegation with respect to the Spanish prisons was based on a report of a UN Rapporteur (van Boven) which was not endorsed nor upheld by the UN Commission of Human Rights. The "chambre d'accusation - kamer van inbeschuldigingstelling" therefore held that there were insufficient grounds to refuse the execution of the EAW, as the report brought forward did not have moral value nor general validity. The EAW was executed. 6. Are there any cases of the courts/judicial authorities refusing to issue and/or execute EAWs on the grounds that extradition would be disproportionate in the light of the offence or other circumstances? 15. Unknown. 7. What effect does the significant passage of time have on whether an EAW is issued or executed? What is the relevant provision in the implementing legislation and how is it being applied (if at all) in actual issue/execution decisions? 16. Article 19.1 of the EAW Act provides that: "Where in specific cases the European arrest warrant cannot be executed within the 60 days after the arrest of the requested person, the public ministry shall immediately inform the person subject f the EAW and the issuing judicial authority thereof, giving the reasons for the delay. In such a case, the time limits may be extended by a further 30 days". It then continues to say in Article 19.2. of the EAW Act that: "Where in exceptional circumstances a Member State cannot observe the time limit of 90 days after the arrest of the requested person, the public ministry shall inform the federal prosecutor, who will in turn inform Eurojust, giving the reasons for the delay". 17. The Act thus largely refers to the same, unbinding time limits as the Framework Decision. It does not make these time limits binding. Thus, the significant passage of time does not seem to have a significant influence on decisions with respect to the execution of an EAW. 8. Does Belgium make it a condition of executing an EAW that the requesting State agree that if convicted and sentences the defendant will be granted a transfer to serve his sentence in the home State? 18. No, not as a general rule. In specific cases however, this might be a condition that is imposed on the issuing state before the EAW is executed (see 11). 9. What effect (if any) have the provisions of Member States' constitutions had on decisions whether to execute EAW requests? Do constitutional provisions on the rule of law or fundamental rights and freedoms tend to prevail over the provisions of the EAW implementing legislation where there is a conflict? 19. Unknown. 10. To what extent are judicial authorities in Member States deciding EAW cases in the light of fundamental principles of European law including respect for fundamental rights and freedoms and the free movement of people? 7 Chambre d'accusation - kamer van inbeschuldigingstelling Bergen, 13 mei 2004, unpublished (referred to in: G. STESSENS, "Het Europees aanhoudingsbevel", R.W. 2004-2005, 561 PERS_KH-DANIELCA BR:4752292.1 5

Allen & Overy EAW Research: Belgium 20. Belgian courts are obliged to interpret domestic law in line with EU law, and EU law must be treated as part of domestic Belgian law. This includes the fundamental rights and freedoms as well as the free movement of people. As set out above, the EAW Act specifically contains a provision ordering Belgian courts to refuse the execution of the EAW if there are serious grounds to believe that the execution of the EAW would infringe the fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on the European Union (see 10). 11. What rights of appeal exist in the implementing legislation or practice of judicial authorities? Are there examples of a failure to grant an appeal to extradition decisions? 21. Article 17 of the EAW Act provides for the possibility of appeal against the decision of the "chambre de conseil - raadkamer". Within 24 hours of this decision an appeal can be lodged with the "chambre d'accusation - kamer van inbeschuldigingstelling". Within 15 days the "chambre d'accusation - kamer van inbeschuldigingstelling" will then have to reach a motivated decision on the appeal. The person subject to the EAW and his lawyer will be heard after having been notified of the day and time of the hearing. They will be enabled to consult the file of the person subject of the EAW on the day before the hearing. If the chambre d'accusation - kamer van inbeschuldigingstelling fails to reach a decision within 15 days of the appeal, the person subject to the EAW will be immediately released. Against this decision no appeal can be made. 22. Article 18 of the EAW Act provides for the possibility of appeal to the "Cour de Cassation - Hof van Cassatie". This appeal has to be lodged within 24 hours of the decision of the "chambre d'accusation - kamer van inbeschuldigingstelling". The "Cour de Cassation - Hof van Cassatie" then has to render a judgement within 15 days of the appeal. If the judgement confirms the "chambre d'accusation" the decision reached by the "Cour de Cassation - Hof van Cassatie" becomes immediately enforceable. If the judgement does not confirm the decision reached by the first "chambre d'accusation - kamer van inbeschuldigingstelling" the case will be referred to another "chambre d'accusation - kamer van inbeschuldigingstelling" which will again decide on the case. After this second decision a new appeal to the "Cour de Cassation - Hof van Cassatie" is possible. 12. To what extent is legal aid available to persons subject to EAW? 23. If the person subject to the EAW does not choose a lawyer after the initial hearing, the investigating judge will notify the president of the Belgian Bar Council who will then appoint a lawyer to act on behalf of the person subject to the EAW (Article 12.2 of the EAW Act). 13. What do statistics show about the charge and conviction rates for individuals whose extradition is ordered? 24. The Council of the European Union collates annual statistics on the practical operation of the EAW but these do not include data for Belgium. No other statistical data with respect to the EAW are available for Belgium. 14. What media coverage has there been of the use of the EAW in Belgium? 25. The EAW got extensive coverage in the Belgian press in 2004 as a result of the EAW issued by Spain against the Spanish-Bask couple Moreno-Garcia 8. After an extradition request of 1993 had been denied by Belgium, the Spanish authorities issued an EAW in 2004, after the introduction of the EAW Act in Belgian law. This EAW lead to a true procedural quest, eventually leading Belgian authorities to deny the execution of the EAW (but not until after the decision of the investigative judge had been appealed before 8 C. RYNGAERT, "Het Europees aanhoudingsbevel lastens Moreno-Garcia: de aanhouder wint", Working Paper KUL, available at: www.kuleuven.ac.be (last consulted 26 May 2010) PERS_KH-DANIELCA BR:4752292.1 6

Allen & Overy EAW Research: Belgium the "chambre d'accusation - kamer van inbeschuldigingstelling", and appealed up to two times before the "Cour de Cassation - Hof van Cassatie" which each time referred the case back to the "chambre d'accusation - kamer van inbeschuldigingstelling ") 26. More recently, the EAW again made the press in the case of Adam Giza. Adam Giza had been extradited by Poland to the Belgian authorities, who issued an EAW against him. The Polish authorities had explicitly made the execution of the EAW dependant upon the return that Adam Giza would be returned to Poland to serve his sentence after being convicted in Belgium. Giza got extradited to Belgium in August 2006 and got sentenced to 20 years on 23 September 2008. After having stayed in Belgium for two years Giza did not want to return to Poland. He had learned French and was working in prison. Giza feared that, as a gipsy, he would be the subject of abuse in Polish prisons. He filed a request with a Brussels judge, asking not to be returned to Poland. In his request he referred to Article 3 of the E.C.R.M. The Belgian judge granted his request not to be returned, not on the ground of Article 3 of the E.C.R.M. but on the ground that Poland had granted the right of return as a favour to Giza, who could therefore waive this right and stay in Belgium 9. This decision got appealed, and the Court of Appeal overruled the decision by the first judge, stating that Giza had to be returned to Poland 10. No appeal before the "Cour de Cassation - Hof van Cassatie" was made against the decision of the appellate court and Giza has been returned to Poland. 9 See "Gazet van Antwerpen" at http://www.gva.be/dekrant/experts/johndewit/de-zaak-giza-stelt-probleem-van-europees-aanhoudingsbevel.aspx (last consulted 26 May 2010) 10 See "De Standaard" at http://www.standaard.be/artikel/detail.aspx?artikelid=dmf20100421_012 (last consulted: 26 May 2010) PERS_KH-DANIELCA BR:4752292.1 7

Allen & Overy EAW Research: Czech Republic EUROPEAN ARREST WARRANT (EAW) 1. What is the implementing legislation of the Member State for the Framework Decision on the European Arrest Warrant and surrender procedures between Member States (the Framework Decision)? The Acts No. 537/2004 Coll., amending the Criminal Code (Act No. 40/2009 Coll.), and No. 539/2004 Coll., amending the Criminal Procedure Code (Act No. 141/1961 Coll., as amended), implement the Framework Decision on the EAW into Czech law. The relevant provisions of Czech law on the EAW are s10(2) of the Criminal Code and ss403-422 of the Criminal Procedural Code. The Czech Republic chose the method and form of giving effect to the Framework Decision on the EAW but must interpret the relevant national provisions in light of the wording of the Framework Decision as declared in par. 43 of ECJ case C-105/03 Maria Pupino. 2. What are the circumstances of arrest set out in the implementing legislation? The circumstances of arrest are set out in s410 in conjunction with ss395 and 396 1. A person may be arrested under the following conditions: the circumstances of the case give rise to a concern that the person subject to an EAW may abscond; and there is enough information concerning: (i) the person subject to the EAW; (ii) the existence of a judgment sentencing the person, on the arrest warrant, or on another decision with a similar effect issued abroad and concerning the person which is or may be subject to extradition; and (iii) the offence which is the ground for which extradition is or may be sought, including the time and place of commitment, legal qualification, and maximum length of custodial sentence. Arrest is made by a public prosecutor or by the Police with the consent of the public prosecutor. Under exceptional circumstances, the Police may arrest a person without the preceding consent of the public prosecutor, provided that the matter is urgent and it is impossible to obtain the public prosecutor's consent; however, the Police are obliged to inform the public prosecutor immediately about the arrest and hand over a copy of the arrest record and any other documents which the public prosecutor may require in order to be able to file a proposal for the person's provisional custody with the relevant court. The public prosecutor must file the proposal for provisional custody with the relevant court within 48 hours of arrest and, within the same period of time, the arrested person must be transferred to the court; otherwise the arrested person must be released. According to s395(2), the Police or the public prosecutor has to interrogate the arrested person subject to the EAW and draw up minutes of the interrogation which must contain the place, time and circumstances of arrest, personal data of the arrested person and the grounds of arrest. The arrested person must be advised of his/her possibility to consent to his/her surrender to another Member State, about the conditions and consequences of such consent, and that by giving such consent, the arrested person automatically waives the application of the principle of speciality (generally, the principle of speciality means that the person may not be prosecuted in the Member State to which the person has been surrendered, for any crime other than the one which was the ground for surrender). 1 Reference are to the Czech Criminal Procedure Code (Act No. 141/1961 Coll., as amended), unless specified otherwise. 0010023-0016973 PRG:876006.6 1

Allen & Overy EAW Research: Czech Republic PROVISIONAL CUSTODY The court has to decide on taking the requested person into provisional custody under s410 in conjunction with s396 within a period of 24 hours from the receipt of the public prosecutor's petition requesting the court to order provisional custody. There is a possibility of an appeal (in Czech stížnost) against such decision of the court. The appeal does not have suspensory effect. The authority of the Member State which issued the EAW has to be called upon to deliver the original of the EAW translated into the Czech language (with the exception of Austria and Slovakia which are subject to bilateral agreements) within a period of 40 days from taking the requested person into provisional custody. The public prosecutor decides on the discharge of the requested person from provisional custody on his or her submission or without such submission if: the grounds for provisional custody cease to exist, or the original of the EAW is not provided within the required period of 40 days. The discharge from provisional custody does not preclude any new taking into provisional custody (s410 in conjunction with s396(3)). SURRENDER CUSTODY Once a Czech regional court decides on the surrender in accordance with s411, the requested person is always taken to surrender custody if he or she has not been in custody. If the requested person was already in provisional custody, the court will change provisional custody to surrender custody. There is an appeal (in Czech stížnost) possible against the decision on changing provisional custody to surrender custody which has a suspensory effect (s 411(5)). 3. What is the procedure for the extradition hearing? The Criminal Procedural Code distinguishes between two types of surrender: (A) (B) Surrender from a Member State to the Czech Republic; and Surrender from the Czech Republic to another Member State SURRENDER FROM A MEMBER STATE TO THE CZECH REPUBLIC This type of surrender procedure is provided for in ss405-407. If the person subject to the EAW is resident in the territory of the Member State in question or if there is a suspicion that he or she is resident there, the public prosecutor files a motion to the competent court to issue the EAW. The motion must, in accordance with s405(2) contain, among other information, the following: the identification details of the person against whom the EAW is to be issued; the facts of the case; legal qualification of the crime; information about the known place of residence of the requested person in the Member State in question; and 0010023-0016973 PRG:876006.6 2

Allen & Overy EAW Research: Czech Republic information on the steps taken so far by the judicial authorities and a reasoned statement why the person is under arrest. SURRENDER FROM THE CZECH REPUBLIC TO A MEMBER STATE This procedure is set forth in ss403, 404, 404a, 408-421. The authority competent to receive the EAW from a Member State is, according to s408(1), the regional public prosecutor's office in whose jurisdiction the requested person resides or in whose jurisdiction the requested person was arrested. The competent court to decide on the surrender is the regional court under whose jurisdiction the regional public prosecutor's office that received the EAW operates (s408(3)). Preliminary investigation under s409 The judicial authority to conduct the preliminary investigation under s409 is the competent regional public prosecutor's office. The purpose of the preliminary investigation is to analyse if the conditions for the surrender, derived mainly from ss409(3) and 411(6), have been met. The conditions include in particular the following: whether the requested person resides in the Czech Republic; the age of the requested person; whether the requested person is subject to immunities and diplomatic privileges under Czech or international law; the nationality of the requested person; the criminality of the offence under Czech law, unless included in the list of offences under s412 for which double criminality is not required; whether the criminal investigation or the execution of punishment is statute barred under the laws of the requesting Member State; and whether criminal proceedings against this person for the same criminal act is pending in the Czech Republic. The preliminary stage may result in the following: (i) Sending back the EAW for the reasons set out in s409(3): death of the requested person; the requesting Member State has not delivered the EAW despite repeated notice; the requested person is not, according to the laws of the Czech Republic, criminally liable for the conduct specified in the EAW due to his or her age; immunity or diplomatic privilege; the requested person does not reside in the Czech Republic or the place of residence is unknown; 0010023-0016973 PRG:876006.6 3

Allen & Overy EAW Research: Czech Republic the EAW was sent after the final decision on surrender or the final decision to extradite such person; the criminal investigation or the execution of punishment in the requesting Member State is statute barred; or the requesting state withdrew the EAW. (ii) Filing a motion to the court by the competent state prosecutor to surrender the requested person with the following proposals: The state prosecutor may propose the court to issue the following decisions: decision on surrender under s411; decision on surrender with reservations stipulated in ss411(7), (8) and (9); or decision on surrender with postponement until the conclusion of the criminal investigation or the execution of punishment; Such decision is delivered if the requested person is to be prosecuted for a criminal offence in the Czech Republic or is serving a sentence for a criminal offence other than that listed in the EAW. decision on the refusal to surrender the person under the EAW: According to s411(6), the reasons for refusal are as follows: the act is not a criminal offence according to the laws of both states; amnesty or the act is statute barred; the person is a Czech citizen or has permanent residence in the Czech Republic and declares before the court that he/she does not want to serve a sentence abroad; the person is prosecuted for the same criminal offence in the Czech Republic. DECISION ON SURRENDER The competent regional court has to deliver the decision on surrender within 60 days from the arrest of the requested person. In the case of the simplified surrender procedure under s413, the period for delivering the decision on surrender is 10 days from the consenting declaration. If, under exceptional circumstances, it is not possible to deliver the decision within the time limits mentioned above, the competent court has to decide within the next 30 days (s411(12)). If the competent court cannot deliver the decision within the extended time limit, the court has to inform the competent authority of the requesting state and Eurojust. Eurojust must be informed through the national member of Eurojust (s411(13)). According to s411(4), the competent regional court is obliged to take the requested person into surrender custody. If the person is already in provisional custody, the court will decide on the change of provisional custody to surrender custody. SURRENDER If the competent court decides on surrender, the requested person is surrendered as soon as practicable, no later than 10 days after the final decision, with the exception of a decision on surrender under s411(9). 0010023-0016973 PRG:876006.6 4

Allen & Overy EAW Research: Czech Republic 4. Are there any grounds for ordering a discharge? The court must refuse to surrender the person subject to the EAW on the following grounds: no mutual criminality (the act is not considered as a criminal act both in the Czech Republic and in the requesting State), unless an exception applies (there is a list of criminal acts in relation to which mutual criminality is not required, e.g. terrorism, murder, corruption, etc.); the act in question has been statute barred or is subject to an amnesty; it is against the rule ne bis in idem, i.e. that person was found guilty for the same criminal act in the Czech Republic or a criminal proceeding against this person for the same criminal act is pending; and in the case of a Czech citizen or a person with a residence permit in the Czech Republic, the State requesting extradition did not provide the Czech Republic with a warranty to grant a transfer of the person to serve his sentence in the Czech Republic. The court may not refuse to surrender the person subject to the EAW on any other grounds. 5. What success has there been in defendants' reliance on human rights as grounds for refusal to be extradited? There has been no success, even if there were cases heard by the Constitutional Court whereas the action was based on a breach of constitutional rights. The Constitutional Court held that it had to be considered that all Member States of the EU are party to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Because of this, a person's rights cannot be affected by the fact that the court hearing is held in another Member State, because his human rights will be protected to the same standard applied in the Czech Republic. 6. Are there any cases of the courts/judicial authorities refusing to issue and/or execute EAWs on the grounds that extradition would be disproportionate in the light of the offence or other circumstances? We have not found any such reported cases. (Please note, however, that in the Czech Republic, of the total number of court decisions, relatively few are reported. The decisions issued by the courts in the first instance, or decisions issued by the Police or by the public prosecutors, are generally not publicly available. Only the decisions of the Supreme and Constitutional Courts are publicly available. However, in the case of an EAW, the Supreme Court has no jurisdiction in the appellate procedure. Therefore, only a relatively small number of Constitutional Court decisions are available.) 7. What effect does the significant passage of time have on whether an EAW is issued or executed? What is the relevant provision in the implementing legislation and how is it being applied (if at all) in actual issue/execution decisions? S411 states that the court must order a discharge if criminal proceedings or serving a sentence has been statute barred under Czech law. In a case of extradition to the Czech Republic, the period of negative prescription of a criminal act is interrupted if the EAW is issued. 0010023-0016973 PRG:876006.6 5

Allen & Overy EAW Research: Czech Republic 8. Does the Czech Republic make it a condition of executing an EAW that the requesting State agree that if convicted and sentenced, the defendant will be granted a transfer to serve his sentence in the home State? Yes. In the case of a Czech citizen or a person with a residence permit in the Czech Republic, the State asking for extradition must provide the Czech Republic with a warranty to grant a transfer of the person to serve his sentence in the Czech Republic. If any person convicted and sentenced in the Czech Republic is subject to an extradition to another Member State, the Czech Republic will ask the second State to transfer the person back to the Czech Republic to serve the rest of his sentence. 9. What effect (if any) have the provisions of Member States' constitutions had on decisions whether to execute EAW requests? Do constitutional provisions on the rule of law or fundamental rights and freedoms tend to prevail over the provisions of the EAW implementing legislation where there is a conflict? Art. 1(2) of the Act. No. 1/1993, the Constitution of the Czech Republic (the Constitution), in connection with the principle of cooperation set down in Art. 4(3) of the EU Treaty create a constitutional principle according to which national law, including the Constitution, must be interpreted in conformity with the principles of European integration and cooperation of the Community bodies and the Member State bodies. Therefore, if there are several interpretations of the Constitution, which includes the Charter of Fundamental Rights and Basic Freedoms (the Charter), and only some of the interpretations lead to the meeting of an obligation which the Czech Republic assumed in connection with its membership of the EU, an interpretation which supports the meeting of the obligation must be used, and not an interpretation which makes the meeting of the obligation impossible. The same conclusions apply to the interpretation of Article 14(4) of the Charter. Article 14(4) of the Charter stipulates that: (i) "Every citizen is free to enter the territory of the Czech Republic", and (ii) "No citizen may be forced to leave his or her homeland". This undoubtedly makes it impossible to exclude a Czech citizen from the community of the citizens of the Czech Republic as a democratic state to which he or she is bound by nationality. From the wording of Article 14(4) of the Charter itself it is impossible, without further arguments, to unequivocally determine whether and to what extent it excludes any temporary extradition of a Czech citizen to another EU Member State for proceedings held in such a Member State if the citizen has the right to return to his or her homeland after the termination of the proceedings. It is because the linguistic interpretation of the term "forcing to leave his or her homeland" may include also such relatively short-term extradition of a citizen abroad for criminal proceedings. It is contrary to the principle of objective teleological interpretation, reflecting the reality of the current EU based on a high mobility of citizens within the entire territory of the EU, to interpret Article 14(4) of the Charter in such a way that it does not enable even a temporary extradition of a citizen to another Member State for the purposes of criminal proceedings in the matter of a crime committed by such citizen in such Member State if it is guaranteed that after the termination of the proceedings the citizen will be, upon his or her request, extradited back to the Czech Republic to serve a sentence. Therefore, a temporary extradition of a citizen for criminal proceedings held in another Member State, conditioned by the subsequent extradition back to the citizen's homeland, does not and cannot constitute "forcing to leave his or her homeland" in the sense of Article 14(4) of the Charter. In the same sense we can point to the rule according to which a citizen of the Czech Republic or a person having permanent residence in the Czech Republic will be extradited to serve a sentence of imprisonment, protective in-patient treatment or protective youthful and young offenders rehabilitation to another Member State only with his or her consent. 0010023-0016973 PRG:876006.6 6

Allen & Overy EAW Research: Czech Republic 10. To what extent are judicial authorities in Member States deciding EAW cases in the light of fundamental principles of European law including respect for fundamental rights and freedoms and the free movement of people? Art. 10 of the Constitution states that international treaties which were ratified by the Czech Parliament are part of the Czech legal order. International treaties are supreme to Czech law. From art. 10 we are able to derive that fundamental principles of European law, including the respect for fundamental rights and freedoms and the free movement of persons declared in the EU Treaties are binding on Czech authorities. Czech courts are therefore also obliged to respect fundamental principles of European law when deciding on the EAW. The Czech Republic is also party to the European Convention on Human Rights and must take the case law of the European Court of Human Rights into account. 11. What rights of appeal exist in the implementing legislation or practice of judicial authorities? Are there examples of a failure to grant an appeal to extradition decisions? There is a right of appeal (in Czech stížnost) against the following decisions issued in the surrender procedure: (1) the decision on surrender, issued under s411(1) (the appeal has a suspensory effect); (2) the decision to refuse to surrender, issued under s411(3) (the refusal to surrender is only possible for reasons listed in s411(6); the appeal has a suspensory effect); (3) the decision on taking the person subject to the EAW into provisional custody, issued under s396 in conjunction with s410 (the appeal does not have a suspensory effect); and (4) the decision on taking the person subject to the EAW into surrender custody, issued under s411(4) or the decision on transforming provisional custody into surrender custody (the appeal does not have suspensory effect). Generally, an appeal is available against any decision of the Police authority. On the other hand, an appeal against a decision of the court or the public prosecutor is only available if the Czech Criminal Procedure Code expressly stipulates and if such decision is the first instance decision. The appeal has a suspensory effect only in cases where the Czech Criminal Procedure Code expressly stipulates this is so. The appeal has to be filed with the body against whose decision it is aimed. The time limit for filing such an appeal is three days after the issuance of the decision. Constitutional complaint The rules on constitutional complaint are set forth in art. 87(1)(d) of the Constitution and in Act No. 182/1993 Coll., on the Czech Constitutional Court, as amended. A person or a legal entity may file a constitutional complaint against a final decision in the proceedings, or against a measure or other interference of a public body, if they violated his or her constitutional rights under the constitutional order of the Czech Republic. The complainant has to state which fundamental right was violated, which public body interfered and what type of decision violated the fundamental rights. It is important to note that the Czech Constitutional Court is not the court of last instance and revises only the constitutionality, not the legality of judicial decisions. The role of the Constitutional Court is to protect rights and freedoms granted by the Constitution. 12. To what extent is legal aid available to persons subject to EAW? According to s36(4)(d), the person subject to the surrender procedure must be represented by an attorney. If the requested person has not chosen his or her attorney, the attorney will be appointed by the judge. 0010023-0016973 PRG:876006.6 7

Allen & Overy EAW Research: Czech Republic Similarly, once arrested, a person may choose his/her attorney. If reachable, the attorney may be present at the initial interrogation of the person when arrested. If the requested person is to waive the principle of specialty during his/her interrogation, the attorney has to be present. The Czech courts maintain a list of attorneys who may be appointed by the court to represent persons facing arrest or surrender. 13. What do statistics show about the charge and conviction rates for individuals whose extradition is ordered? The Headquarters of the Police of the Czech Republic collect annual statistics on the use of the EAW. The most recent statistics available are as follows. In 2007: The Czech courts issued 323 EAWs on the basis of which 128 people were arrested in other EU Member States. The highest number of people arrested at the Czech courts' request was in Slovakia (28), the UK (27), Germany (19), Spain (14) and Belgium (8). The Czech Police arrested 137 individuals on its territory on the basis of EAWs issued in other EU Member States. Of the 137, 58 were arrested on the basis of EAWs issued in Slovakia and 44 on the basis of EAWs issued in Germany. Link to 2007 statistics: http://aplikace.mvcr.cz/archiv2008/rs_atlantic/policie/prezidium/79595.html 14. What media coverage has there been of the use of the EAW in the Czech Republic? At the time of implementation of the EAW into Czech law, comments in the legal press have been mainly positive or neutral. The main negative comment came from the Czech President who is traditionally anti- European and vetoed the law implementing the EAW. However, Parliament overruled the Presidential veto. Since its adoption, there are occasional comments on the EAW in the press, but we have not found any major criticism. 0010023-0016973 PRG:876006.6 8

Allen & Overy EAW Research: France EUROPEAN ARREST WARRANT (EAW) 1. What is the implementing legislation of the Member State for the Framework Decision on the European Arrest Warrant and surrender procedures between Member States (the Framework Decision)? In order to render the implementation of the Framework Decision into French law possible, the French Constitution was amended 1 so that Article 88 now provides that: "The law sets the rules related to the European arrest warrant pursuant to acts adopted on the basis of the European Union Treaty". The actual legislation has been implemented into the Criminal Procedure Code, at Articles 695-11 to 695-51, as they result from Act No. 2004-204 2 (the 2004 Act), which came into force on 10 March 2004. These provisions have been amended by Act No. 2005-1549 of 12 December 2005 and Act No. 2009-526 3 of 12 May 2009. Besides, the Ministry of Justice has issued two circulars, 4 setting out, respectively, the main provisions of the 2004 Act and new technical details relating to the diffusion of the EAW. France chose the form and method of giving effect to the Framework Decision but must interpret the resulting implementing legislation in conformity with the Framework Decision. In Criminal Proceedings against Pupino, 5 the ECJ stated: "When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result it pursues and thus comply with article 34(2)(b) EU". 2. What are the circumstances of arrest set out in the implementing legislation? Pursuant to Article 695-26 of the French Criminal Procedure Code (the CPC ), when the location of a person subject to an EAW is identified within the national territory, an arrest warrant issued by another Member State of the European Union may be sent directly, in its original form or in the form of a certified copy, by any means producing a written record, to the territorially competent Public Prosecutor, 6 who shall execute said arrest warrant after confirming the legality of the request. In all other cases, Article 695-15 provides that, depending on the circumstances, the EAW is executed after it has been sent through the Schengen Information System, the European Judicial Network secured system, Interpol or by any other means producing a written record and under conditions enabling the execution judicial authority to verify its authenticity. When the person subject to an EAW is arrested, the original or a certified copy of the EAW must reach the competent French authority within six working days at the latest from the date of the arrest. However, according to the Supreme Court, 7 such time period is not prescribed under penalty of nullity of the proceedings. Where the requested person benefits from a privilege or an immunity in France, the territorially competent Public Prosecutor immediately requests its waiver by the competent French authorities. If the French executing authorities are not competent, the waiver request is left in the hands of the issuing judicial 1 2 3 4 5 6 7 Constitutional Law No. 2003-267 dated 25 March 2003 Law No. 2004-204 of 9 March 2004 providing for the adaptation of justice to the evolutions of criminality. Law No. 2009-526 of 12 May 2009 of simplification and clarification of the law and relaxation of procedures. Circular of 11 March 2004, Presentation of the provisions of Law No. 2004-204 of 9 March 2004 providing for the adaptation of justice to the evolutions of criminality concerning the European arrest warrant and extradition; Circular of 20 July 2009 presenting the practical provisions aimed at completing the circular of 11 March 2004 relted to the diffusion of European arrest warrants. Case C-105.03, [2006] QB 83. If the Public Prosecutor to whom an EAW has been sent considers that he is not territorially competent to take action, he transfers it to the territorially competent Public Prosecutor and informs the judicial authorities of the issuing member state. Cass. Crim., 1 September 2004, RG No. 04-84987; Cass. Crim., 28 June 2005, RG No. 05-83393; Cass. Crim., 21 July 2005, RG No. 05-84058. 1