A Guide to The European Arrest Warrant October 2012
About Fair Trials International Fair Trials International (FTI) is a non-governmental organisation that works for fair trials according to internationally recognised standards of justice and defends the rights of those facing charges in a country other than their own. Our vision is a world where every person s right to a fair trial is respected, whatever their nationality, wherever they are accused. FTI pursues its mission by providing assistance to individuals arrested outside their own country through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and develops local legal capacity through targeted training, mentoring and networking activities. FTI is particularly active in the field of EU criminal justice policy. www.fairtrials.net Registered charity no. 1134586 Registered with legal liability in England and Wales no 7135273 Registered office: 3/7 Temple Chambers, Temple Avenue, London EC4Y 0HP United Kingdom Contact: Emily Smith Alex Tinsley Policy Officer Strategic Caseworker +44 (0)20 7822 2381 +44 (0)20 7822 2385 Emily.smith@fairtrials.net alex.tinsley@fairtrials.net Acknowledgment Although the views expressed in this Guide are our own, we are grateful for the generous support of the Criminal Justice Programme of the European Commission, the Oak Foundation and the Global Criminal Justice Fund of the Open Society Foundations. Thanks also to Mellissa Curzon-Berners and Lena Donner for their valuable assistance. With financial support from the Global Criminal Justice Fund of the Open Society Foundations With financial support from the Criminal Justice Programme of the European Commission
The European Arrest Warrant The Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States (the EAW Framework Decision) was adopted in 2002 and entered into force on 1 January 2004. The legislation aimed to facilitate the surrender of people accused or convicted of criminal offences between EU Member States to improve cooperation in fighting serious cross-border crime such as terrorism. Example: Pierre, who is French but now residing in the UK, is wanted in France for burglary: EAW Issued (France) Designated Authority Receives EAW (UK) Arrest (UK) Consent not given Consent given 10 days Bail Hearing (UK) Final Decision (UK) Extradition Hearing (UK) 60 days Release Extradition to France within 10 days Release Extradition to France within 10 days
The EAW Key provisions What kind of measure is the EAW Framework Decision? The EAW Framework Decision is a mutual recognition instrument. This means that when the state where an offence took place issues a European Arrest Warrant (EAW), the state where the person who is alleged to have committed it, or is wanted to serve a custodial sentence in relation to it, is located is required to execute it. It replaced all previous extradition treaties between Member States. What is a European Arrest Warrant? Article 1(1) of the EAW Framework Decision states that the European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person. The EAW Framework Decision establishes a fast-track system for surrendering people from one Member State to another. While an EAW is technically an instrument involving surrender rather than extradition, in this guide we refer to the two interchangeably. Which authorities can issue/execute EAWs? Under Article 6(3) of the EAW Framework Decision, Member States must designate the judicial authority competent to issue and/or execute EAWs. This is done by notifying the General Secretariat of the Council of the EU. Under Article 7(1) each Member State may also designate a central authority to be responsible for the administrative transmission and reception of EAWs as well as for all other official correspondence. This is also done by notifying the General Secretariat. Recital 9 makes it clear that the role of the central authority must be limited to practical and administrative assistance. When can an EAW be issued? Under Article 1(1) of the EAW Framework Decision an EAW can only be issued for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. Under Article 2(1), an EAW can only be issued for the purpose of conducting a criminal prosecution if the offence is punishable by a custodial sentence or detention order of a maximum of at least twelve months under the law of the issuing Member State. An EAW can only be issued for the purpose of executing a custodial sentence that has already has been passed if the sentence is for a minimum of least four months. What is the process for issuing an EAW? A form of EAW is set out in the Annex to the Framework Decision. Article 8 lists the information that must be included in an EAW, which is all included on the standard form and includes details such as the identity and nationality of the requested person, details about the issuing authority, the nature and legal classification of the offence, a description of the circumstances in which the offence was committed and, if there has been a final judgment, the penalty imposed.
Once the location of the requested person is known, the issuing judicial authority will transmit the EAW to the executing judicial authority. This may follow, or be accompanied by, an alert via the Schengen Information System or an Interpol notice. What happens once an EAW has been issued? The executing Member State will then arrest the requested person. Article 11 provides that upon arrest the requested person must be informed of the EAW and its contents and will be given the option of consenting to surrender. The requested person must be granted the right to access a lawyer and an interpreter in accordance with the law of the executing Member State, and states must have measures in place to ensure that any consent to surrender is done voluntarily and in full awareness of the consequences (Article 13(2)). If the requested person does not consent to surrender then he/she is entitled to be heard by the executing judicial authority. What is the process for the executing authority to decide whether to surrender the requesting person? The executing authority must decide within time limits prescribed by the EAW Framework Decision whether to surrender a requested person. If the executing authority is not satisfied that the EAW includes the information specified in Article 8 then the executing Member State may request the necessary additional information (Article 15(2)). If consent to surrender is given, a final decision on the execution must be taken within ten days of that consent (Article 17(2)). If the requested person does not consent to surrender then he/she is entitled to be heard by the executing judicial authority. A final decision on execution must be made no later than sixty days following the date of arrest. The extradition hearing itself is held in accordance with the domestic law of the executing Member State (Articles 17(3) and 19). If the executing judicial authority decides to surrender the requested person this must take place no later than ten days following the final decision. Whatever the final decision, the executing judicial authority must notify the issuing judicial authority of it immediately, and reasons must be given for any refusal to execute an EAW (Article 17(6)). Can the time limits be extended? All time limits may be extended in exceptional circumstances, generally due to procedural problems in the executing state (Articles 17(4), 23(3)). Article 23(4) provides that surrender may exceptionally be temporarily postponed for serious humanitarian reasons. One example is where there are substantial grounds for believing that surrender would manifestly endanger the requested person s life or health. The EAW must still be executed as soon as the relevant grounds (for example serious ill-health) have ceased to exist.
Will someone remain in detention whilst awaiting extradition or the outcome of an extradition hearing? The competent judicial authority in the executing state must decide whether that person should remain in custody pending his/her extradition hearing. This decision is made according to the domestic law of the executing Member State on pre-trial detention, provided that it takes all measures deemed necessary to prevent the person absconding (Article 12). Are there any instances when a Member State must refuse to execute a warrant? Article 3 lists the three circumstances in which it is mandatory for the executing judicial authority to refuse to execute a warrant. These are: Where the offence is covered by an amnesty in the executing Member State (Article 3(1)); Where the requested person has already been finally acquitted or convicted by a Member State in respect of the same acts that make up the offence for which surrender is sought, provided that if a sentence was issued for the acts it has been served, is currently being served or many no longer be executed under the law of the sentencing Member State (the ne bis in idem rule) (Article 3(2)); and If the requested person may not, owing to his age, be held criminally responsible under the law of the executing Member State (Article 3(3)). Are there any instances when a Member State may choose whether or not to execute a warrant? Article 4 of the EAW Framework Decision lists seven circumstances in which the executing judicial authority has discretion whether or not to execute the warrant. These include: If the EAW relates to acts which would not constitute a criminal offence in the executing Member State (except for 32 categories of offence listed in Article 2(2) such as terrorism, murder, certain drugs offences and rape) (Article 4(1)); If the requested person is already being prosecuted for the offence in the executing Member State (Article 4(2)); Where authorities of the executing Member State have decided not to prosecute for the offence on which the EAW is based or have halted proceedings, or a final judgement has already been passed in respect of the relevant acts which prevent further proceedings (Article 4(3)); Where criminal prosecution or punishment is statute-barred according to the law of the executing Member State and the acts covered by the EAW are within its jurisdiction (Article 4(4));
Where the execution of the EAW would contravene the ne bis idem rule because the requested person has been finally judged by a third state (i.e. one not party to the EAW Framework Decision) (Article 4(5)); Where the EAW has been issued for the purposes of execution of a custodial sentence, if the requested person is staying in, or is a national or resident of the executing Member State, then the EAW may be refused provided that State undertakes to execute the sentence itself (Article 4(6)); and Where the EAW relates to offences which were committed wholly or partly in the executing Member State, or were committed outside the territory of the issuing Member State (Article 4(7)). Are there any further bars to extradition? Under Article 5 of the EAW Framework Decision individual Member States may decide, by passing domestic legislation, that surrender will be refused unless the issuing Member State gives one or all of the following guarantees: If the EAW was issued following a trial in absentia, and if the requested person was not summoned to attend the trial, surrender may be subject to the issuing Member State guaranteeing an opportunity to apply for a retrial (Article 5(1)); If the offence forming the basis of the EAW is punishable by a life sentence or life-time detention order, surrender may be subject to the issuing Member State having certain provisions for a review of the sentence (Article 5(2)); and If the requested person is a national or resident of the executing Member State surrender may be subject to the issuing Member State returning the requested person post-trial to serve his/her sentence. Are there any human rights grounds on which a Member State can refuse to execute an EAW? All Member States are signatories to the European Convention on Human Rights (ECHR) and are therefore bound by its terms. Recital 13 of the EAW Framework Decision states that: No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhumane or degrading treatment or punishment. Article 1(3) makes it clear that the Framework Decision does not modify the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. However, it is important to note that there is no explicit right to refuse to execute an EAW on human rights grounds in the main body of the EAW Framework Decision. Some countries, such as the UK,
have written a human rights refusal ground into national legislation. If your jurisdiction does not explicitly provide for this, then there may still be human rights arguments that can be put forward in EAW cases based on the provisions above and the rights enshrined in the ECHR. Article 3 (No one shall be subjected to torture or to inhuman or degrading treatment or punishment) Every Member State has obligations under the ECHR which should prevent them from extraditing someone who can show that they are at real risk of being subjected to ill-treatment in the issuing state. It is established by case law from both the European Court of Human Rights and the Court of Justice of the EU that an assumption that all EU Member States fulfil their obligations under the ECHR is not easily displaced but can be rebutted by clear and cogent evidence (see for example MSS v Belgium and Greece 1 and NS and others v SSHD 2 ). The possibility of raising a potential breach of Article 3 as a bar to extradition should be considered. Situations where this may be possible will be considered in more detail in the example scenarios at the end of the paper. Article 8 (Right to respect for private and family life) Under Article 8 of the ECHR, everyone has the right to respect for his private and family life, his home and his correspondence. Public authorities can only interfere with this right in accordance with the law and as necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 concerns can arise in extradition cases where the requested person has an established family life in the executing state, especially where children are involved. It may be that extradition serves a legitimate aim within Article 8(2), the question that you should be asking is whether the extradition is proportionate to that legitimate aim. Situations where this may be possible will be considered in more detail in the example scenarios at the end of the paper. Can an EAW be refused because the circumstances of the case make extradition disproportionate? There is no explicit requirement in the EAW Framework Decision that a state applies a proportionality test when issuing an EAW and no refusal ground that allows an executing Member State to refuse to execute an EAW on these grounds. This may be an issue where, for example, the offence in question is minor, the person requested is in ill-health or a great deal of time has passed since the offence was committed. However, proportionality is a general principle of EU law and the European Commission has stated that states should apply a proportionality test before issuing an EAW. It is therefore worth bearing in mind as a possible argument against extradition when working on EAW cases. If the Member State orders execution of the EAW is there anything else you can do to prevent extradition? 1 Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011 2 C-411/10 21 December 2011
It may be possible to appeal the final surrender decision. This possibility, as well as conditions and procedures attached to it, will vary in accordance with national law. If your case raises human rights arguments, you may also be able to obtain relief from the European Court of Human Rights under the ECHR. In particular, you may be able to seek interim relief under Rule 39, which requires the extradition proceedings to be halted until the Court has ruled on any potential breaches of the Convention they may cause. Further information about bringing a Rule 39 application can be found in the training module on the European Court of Human Rights. What happens if there are multiple requests for the same person? Where two or more Member States have issued an EAW the competent judicial authority in the executing Member State must decide which to execute. When making this decision, the judicial authority should take all the relevant circumstances into account, especially the relative seriousness and place of the offences, the dates of the EAWs and whether the EAW is issued for the purpose of prosecution or for execution of a custodial sentence (Article 16(1)). If a Member State has issued an EAW which conflicts with a request presented by a non-eu country, the competent judicial authority must make a decision as to which request takes precedence. This decision must involve a consideration of all relevant circumstances as described above and any circumstances mentioned in the applicable convention with the third country. What happens if the requested person is wanted to stand trial for a criminal offence in the executing state? The executing authority may postpone the surrender of the requested person so that he or she can be prosecuted in the executing Member State (or, if sentencing has already taken place, so that he or she can serve the sentence). Alternatively, the executive judicial authority may surrender the requested person under conditions to be determined by mutual agreement (for example that the person be returned following the conclusion of proceedings and having served his or her sentence in the issuing state).
Examples scenarios Lorenzo has been arrested in Italy on an EAW issued by Greece for theft committed when he lived there a year earlier. Lorenzo denies committing the offence and does not want to be extradited to Greece. He is worried that he will spend a long time in detention awaiting trial and that he will suffer due to the horrendous prison conditions in Greece. Think about whether Lorenzo is likely to be extradited to stand trial and what you could do as his defence lawyer to argue against extradition. As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a lawyer in the issuing state, in this case Greece. This can be essential not only to gather further information about the case but also to make sure that, if Lorenzo is extradited, he has a lawyer to represent his interests. A Greek lawyer, for example, may be able to talk to the prosecution authorities to see whether the case is ready for trial. If it is not then he or she may be able to persuade the authorities to delay asking for Lorenzo s surrender until the case is finalised. This would avoid Lorenzo spending a long time in Greece awaiting trial. Can an EAW be issued in relation to Lorenzo s offence? In this case an EAW has been issued to request Lorenzo s surrender to stand trial in Greece. Provided that theft is punishable in Greece with a custodial sentence or detention order for a maximum period of at least 12 months then an EAW can be issued (Article 2(1)). Are there any mandatory refusal grounds for the EAW? It is unlikely that theft is covered by an amnesty under Italian law and as the offence took place in Greece it is unlikely that Lorenzo has already been tried for same acts so ne bis in idem will not apply. Therefore, provided that Lorenzo has reached the criminal age of responsibility in Italy, there are no mandatory refusal grounds under Article 3. Are there any grounds for optional non-execution of the EAW? None of the optional grounds for refusal listed in Article 4 are applicable to the facts of Lorenzo s case. Are there any further grounds on which you could argue that the EAW should not be executed? As Italy is a signatory to the ECHR, it is under an obligation not to extradite individuals where there is a serious risk that their Convention rights will be violated upon surrender (see Soering v UK 3 in relation to Article 3 ECHR). You could therefore attempt to argue that surrendering Lorenzo to Italy would amount to a breach his right not to be subjected to torture or other inhumane treatment under Article 3 ECHR. However, due to the assumption that EU Member States abide by their Convention obligations, the burden of proof in such cases is very high and you must be able to provide substantial evidence supporting your claim specifically in order to successfully resist 3 Soering v UK [1989] ECHR 14
extradition on these grounds. Despite there being no explicit human rights refusal ground in the EAW Framework Decision, you could use Article 1(3) and Recital 13 to support your argument in this regard. Lorenzo s guilt or innocence is a matter to be decided in the issuing state, and will therefore not constitute a barrier to surrender. If the courts in Italy order Lorenzo s surrender to Greece is there anything further you can do? If Lorenzo is going to be surrendered to Greece then you should make contact with a lawyer in Greece to make sure that he has someone in place to represent him as soon as he arrives at pre-trial hearings. Graznya has been arrested in the UK pursuant to an EAW issued by Poland in relation to a 10 month sentence suspended for three years that she received for the possession of 4.04 grams of amphetamine for personal use in 2006 when she was seventeen years old. A year after the sentence, Graznya moved to the UK where she has been in permanent employment ever since and has not used drugs. In 2010, Poland activated the suspended sentence on the basis that Graznya had broken the terms of her probation by moving to the UK. An EAW was issued and Graznya has been arrested. She is the sole carer for her 11 month old son, who will have to be taken into care if she is extradited to Poland. Think about whether Graznya is likely to be extradited to serve this sentence and what you could do as her defence lawyer to argue against extradition. As a defence lawyer in an EAW case, the first thing you should do is try and make contact with a lawyer in the issuing state, in this case Poland. This can be essential not only to gather further information about the case but also to make sure that, if Graznya is extradited, she has a lawyer to represent her interests. Can an EAW be issued in relation to Graznya s offence? Yes. Under Article 2(1) an EAW can be issued where a sentence of at least four months has been passed. As Graznya was sentenced to 10 months imprisonment, an EAW can be issued. Are there any mandatory refusal grounds for the EAW? It is unlikely that possession of drugs is covered by an amnesty under UK law and as the offence took place in Poland ne bis idem is unlikely to apply. Therefore, provided that the criminal age of responsibility is 17 or under in the UK (the age at which Graznya committed the offence) then there are no mandatory refusal grounds under Article 3. Are there any grounds for optional non-execution of the EAW? Article 4(6) provides that if the EAW has been issued for the purposes of execution of a custodial sentence and the requested person is staying in, or is a national or resident of, the executing Member State then the EAW may be refused provided that the executing state undertakes to execute the sentence itself. As Graznya has been resident in the UK for four years she may prefer to
serve the sentence in the UK, although the UK would have to agree to execute the sentence. A recent preliminary ruling in the Grand Chamber of the Court of Justice of the European Union indicates that the fact that Graznya is a non-national should not automatically preclude the UK allowing her to serve her sentence there. 4 Are there any further grounds on which you could argue that the EAW should not be executed? You may wish to consider challenging the extradition on the grounds that it would breach Graznya s and her child s rights under Article 8 of the ECHR. Graznya has established a stable private life in the UK with permanent employment and it is arguable that extraditing her would amount to a disproportionate interference with her private and family life despite the legitimate aim of executing her sentence. Graznya s extradition would also mean that her child would be taken into care, which would have an irreversible effect on the child s life and could arguably amount to disproportionate interference with its Article 8 rights. It should be noted that courts are often unwilling to hear arguments that do not directly relate to a refusal ground written in the EAW Framework Decision. However, all Member States are signatories to the ECHR and all Member State courts should be willing to consider valid arguments that relate to that state s obligations under the Convention. If you feel that you have a strong human rights argument against extradition then, if all domestic appeals have failed, you could bring a case at the European Court of Human Rights in Strasbourg. If you do this then you should consider making a Rule 39 application to halt the extradition until the case is decided. Further information about bringing a case before the European Court of Human Rights and making a Rule 39 application can be found in the training module on the European Court of Human Rights. Is there anything else that you could do as Graznya s defence lawyer? Graznya is facing extradition in relation to a relatively minor offence that she committed years ago. As discussed above, there is no requirement to conduct a proportionality test in the EAW Framework Decision, but Poland should nevertheless have considered the proportionality of the warrant before issuing it. You should discuss this with your Polish counterpart and ask him/her to speak to the authorities in Poland to discuss the possibility of alternatives to Graznya s surrender. This can be very effective. In some cases it may lead to the person paying a fine instead of being extradited and in some cases it may lead to the warrant being withdrawn. If the courts in Italy order Graznya s surrender to Poland is there anything further you can do? If Graznya is going to be surrendered to Poland then you should make contact with a lawyer in Poland to make sure that she has someone in place to represent her as soon as she arrives at pretrial hearings. 4 Case C-42/11 João Pedro Lopes Da Silva Jorge (Grand Chamber, 5 September 2012)
Links to key texts and resources EAW materials Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (downloadable here). Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision on the EAW, 11 April 2011 (downloadable here). Fair Trials International materials Communiqué issued after the Fair Trials International Legal Experts Advisory Panel Meeting (Cambridge, 28 March 2011): The European Arrest Warrant (downloadable here). Fair Trials International, The European Arrest Warrant seven years on the case for reform, May 2011 (downloadable here). The European Arrest Warrant: the role of judges when human rights are at risk, Catherine Heard and Daniel Mansell, New Journal of European Criminal Law Volume 2/2001/02 (downloadable here).