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Summary problem 4 European law: justice and home affairs
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problem 4 European law: justice and home affairs
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Problem 3 - Free movement and transboundary justice: the EAWPart A: The application of the EAW (You Can Run, But Can You
Hide?)
1. What is the European Arrest Warrant?
The mutual principle and EU criminal law (Armanda & Weyenbergh, 2017)
3 stages in the evolution of judicial cooperation in criminal matters in the EU:
1. Classic cooperation: mainly developed within the Council of Europe in the 1950s
through multilateral agreements. Strongly marked by sovereignty and the principle of
territoriality. > slow and burdensome cooperation mechanisms
2. Second wave (improving classical cooperation): started in the 1970s by MS. Brought
about limited but tangible improvements leading to faster and more flexible
cooperation.
3. Principle of mutual recognition: the MS decided that the improved model was not
enough to face challenges for the Schengen area. The principle effectively neutralized
the trade barriers (resulting from the different national technical regulations) and
enabled free movements of goods within the Community.
So far there are 11 instruments of mutual recognition, namely 9 Decisions adopted under the
former third pillar, and 2 directives adopted under the Lisbon Treaty.
The European Arrest Warrant Framework Decision (Decision 2002/584 JHA) is the
only one that is relevant in this problem!!
Be aware: The EAW FD refers to the European Arrest Warrant Framework Decision,
while EAW just refers to a European Arrest Warrant!!!
Mutual recognition (preambles 6&10)
= based on the thought that while another state may not deal with a certain matter in the
same or even a similar way as one’s own state, the results will be such that they are accepted
as equivalent to decisions by one’s own state.
3 elements around mutual recognition:
Equivalence: the results will be accepted as equivalent to decisions by its own state.
Mutual trust: MS have trust in each other’s adequacy of the rules and also in the
application of those rules.
Extraterritoriality: the decision by a state has effect outside that state.
The philosophy of the principle
These elements show that the philosophy underlying this new model of cooperation is
different than the previous stages of judicial cooperation
Mutual recognition instead of the ‘exequatur procedure’ (need to transform into a
national decision).
, Problem 3 - Free movement and transboundary justice: the EAW
Mutual recognition brought about other significant changes:
Terminology: the words ‘requesting and requested States/authorities’ have been
replaced by ‘issuing and ‘executing States/authorities’> shows change in mentality
Simplification of formality: mutual recognition simplifies formalities, notably via the
warrant/ order/ certificate technique.(this indirectly limits possibility to ask more info)
o The practice of systematically requesting additional information of the case has
been condemned by the Council as contrary to the principle of mutual
recognition and a relic of the extradition procedure. > bc it signals a lack of
trust.
Judicialization: the procedure is further simplified through the granting of a prominent
role to judicial authorities. > the political phase that used to be inherent in the
extradition procedure is abolished.
Acceleration of cooperation: certain instruments provide for binding deadlines, others
provide indicative ones while others are less precise or even silent (strict time limits,
binding deadlines)
o Art. 17 EAW FD: deadline of 10 days for taking the final decision on the
execution of the EAW if the requested person has consented to the surrender
o Art. 23 EAW FD: sets a general ten- day time limit to surrender the person
from the moment the final decision on the execution is taken.
o This is a big difference with the 1 year average waiting period in the first to
phases.
Reduction of grounds for refusal: mutual recognition implies a clear duty to provide
cooperation, a limitation to the traditional requirement of double criminality and a
significant reduction of the available grounds for refusal.
o The EAW maintains a series of grounds for refusal, divided into 2 categories:
the mandatory (art. 3 EAW FD) and the optional (art. 4 EAW FD)
o Case advocaten voor de wereld
Rationalization of applicable text: entails a certain rationalization of judicial
cooperation instruments (the text between member states align better)
The EAW FD
Legal basis: 67(3) & 82 TFEU
Origins
The proposal for an EAW FD was presented 8 days after 9/11. An agreement was reached 3
months later and it became the first instrument of mutual recognition in criminal matters.
The EAW FD replaced pre-existing extradition conventions between EU MS (art. 31
EAW FD).
Art. 1.1 EAW FD 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, for the purposes of conducting a
criminal prosecution (for a period > 12 months, art. 2.1 EAW) or executing a custodial
sentence of detention order (for sentences of > 4 months, art. 2.1 EAW).
Critiques/downsides of the EAW FD
Lack of an explicit fundamental rights ground for refusal (limited to recital 12 & art.
1(3).
Proportionality is linked to equivalence: the costs of executing an EAW are borne by
the executing state. abuse of the EAW mechanism for minor offences negatively
impacts mutual trust.
, Problem 3 - Free movement and transboundary justice: the EAW
Handbook on how to issue and execute a EAW (European Commission)
The EAW is a judicial decision enforceable in the Union that is issued by a MS and executed
in another MS on the basis of the principle of mutual recognition
Art. 1(1) read in conjunction with art. 6(1) EAW
The EAW replaced the traditional system of extradition with a simpler and quicker
mechanism of surrender of requested persons for the purposes of conducting a criminal
prosecution of executing a custodial sentence or detention order.
A warrant may be issued for the purposed of:
A criminal prosecution in relation to acts punishable under domestic law by a
custodial sentence or detention order for a maximum period of at least 12 months
(during the investigation, examining and trial stages, until the conviction is final);
The execution of a sentence or detention order of at least four months.
Points (a) and (b) are not cumulative
Central authorities are excluded from the decision-making process in EAW procedures.
However, art. 7 EAW provides that MS may designate central authorities to assist and support
the judicial authorities, especially for receiving and transmitting EAW’s
The FD EAW reflects a philosophy of integration in a common judicial area.
It is the first legal instrument involving cooperation between the MS on criminal matters
based on the principle of mutual recognition. The issuing MS’s decision must be recognized
without further formalities and solely on the basis of the judicial criteria.
The surrender of nationals is a principle and general rule, with few exceptions. These
exceptions concern the enforcement of custodial sentences in one’s home country and apply
equally to residents. Practice has shown that about one fifth of all surrenders in the Union
concern a country’s own nationals.
Ground for refusal of execution are limited and exhaustive: art. 3 & 4 FD EAW.
There is no verification of double criminality as a ground for non-execution and non-
surrender with regard to the offences listed in art. 2(2) FD EAW.
If the offences in question are not regarded by the competent authority of the issuing
MS as offences falling within art. 2(2), double criminality may still apply
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