Module 8 The European Arrest Warrant and the surrender procedure Version 2.0

Module 8 The European Arrest Warrant and the surrender procedure Version 3.0

(logo of the training organiser)Training organised by(name of training organiser)on (date) at (place)Based on the standard training programme in judicial cooperation in criminal matters within the European UnionModule 8The European Arrest Warrant and the surrender procedureVersion: 3.0Last updated: 31.10.2012

The European Judicialtraining network

With the support of the European Union

Project description

This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).

The programme as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.

The methodological approach of the standard programme aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.

This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.

In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the projects management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to ejtn@ejtn.eu, quoting Copen Training.

The main authors of version 3.0 are: Serge de Biolley, Gisle Vernimmen and Anne Weyembergh. Veronica Santamara and Laura Surano contributed to the previous versions.

How to use this document:The 'standard training programme in judicial cooperation in criminal matters' training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:1. Its content and layout cannot be altered in any way, except: - where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organisers logo, date, place etc.) - where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions- these additions and amendments must be notified to the projects development team ejtn@ejtn.eu, quoting Copen Training.3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.

Whats new in this version?

In particular, this new version (3.0) takes into account: the Revised version of the European handbook on how to issue a European Arrest Warrant (Council of the EU, doc. 17195/1/10 REV 1 of 17 December 2010); Report on the 4th round of mutual evaluations (Council of the EU, doc. 8302/2/REV 4 of 28/5/2009) and follow-up to the recommendations (Council of the EU, doc. 8436/2/10 REV 2 of 28/5/2010, and doc. 15815/11 of 28/10/2011); the final report from the Commission on the implementation of FD of 13/6/2002 (COM(2011) 175 and SEC(2011) 430) the case-law of the Court of Justice of the European Union and of the European Court of Human Rights on the European arrest warrant.

Aims of this module

Module 8 describes how cooperation during and after sentencing operates, as established by the Framework Decision on the European arrest warrant and surrender procedures. It looks at the background and general objectives of the new system, the concept of the European arrest warrant, how the European arrest warrant is processed by the issuing authority and by the executing authority, the effects of surrender, how it relates to other legal instruments and the application of the European arrest warrant over time, its transposition and practical implementation, as well as the relevant case-law of the Court of Justice of the European Union. It concludes with some practical tips aimed at issuing and executing authorities, together with selected case studies.

Relevant legislation

European Convention on Extradition of 13 December 1957 Compendium A.2.1.; its two additional protocols of 15 October 1975 Compendium A.2.2.; and its 2nd additional protocol of 17 March 1978 Compendium A.2.3. European Convention on extradition of 10 March 1995 Compendium B.4.1. European Convention on extradition of 27 September 1996 Compendium B.4.2. Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures between Member States Compendium B.4.3. Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial Compendium B.5.8. FD 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU Compendium B.5.5. Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, OJ L 142 of 1/6/2012 Compendium B.6a.1 Directive 2010/64/EU of 20/10/2010 on the right to interpretation and translation in criminal proceedings OJ L 280 of 26/10/2010 Compendium B. 6a.2.

For further information => see the following websites: the website of the European Judicial Network (click on the tab practical implementation of mutual recognition instruments:http://www.ejn-crimjust.europa.eu the website of Eurojust (for annual reports and their annexes, e.g. guidelines in the case of concurrent EAWs):http://eurojust.europa.eu/about/structure/college/Pages/assistants-national-members.aspx the website of the Council of the European Union (e.g. for the European handbook on how to issue a European Arrest Warrant):http://www.consilium.europa.eu/applications/PolJu/details.asp?id=66&lang=FR&cmsid=720 the website of the Court of Justice (for case-law):http://curia.europa.eu/jcms/jcms/j_6/ the website of the Council of Europe (for the texts of the conventions and their status of ratification): http://www.conventions.coe.int/?pg=/treaty/default_en.asp&nd=&lg=fr the website of the European Court of Human Rights (for case-law):http://www.echr.coe.int/echr/

Contents

1.Introduction: background and general objectives82.Definition of the European Arrest Warrant103.Processing of the European arrest warrant by the issuing authority113.1.Acts for which a European arrest warrant can be issued113.2.Conditions that must be met by the European arrest warrant123.2.1Formal requirements123.2.2Content requirements123.2.3Language requirements133.2.4Principle of proportionality as a criterion for issue153.3.Transmission153.3.1Between whom?153.3.2How?163.3.3When?184.Processing of the European arrest warrant by the executing authority204.1.Flagging: the possibility of blocking execution of the European arrest warrant upon entry of the alert in the SIS204.2.Obligation to arrest and the rights of the person concerned214.3.Surrender decision224.3.1Time limits for the decision to be taken and situation pending the decision224.3.2Cases in which execution may or must be refused234.3.3Conditional surrender294.3.4Decision in the event of multiple requests314.3.5Appeals314.3.6Notification of the decision to the issuing authority324.4.The surrender itself324.4.1Time limits324.4.2Postponed or conditional surrender325.Effects of the surrender345.1.Deduction of the period of detention served in the executing Member State (Article 26 of the FD)345.2.Speciality rule and exceptions (Article 27 of the FD)345.3.Surrender or subsequent extradition (Article 28 of the FD)356.Relation to other legal instruments and the application of the European arrest warrant over time366.1.Relation to other legal instruments (Article 31 of the DC)366.2.Application of the European arrest warrant over time (Article 32 of the FD)377.Transposition and practical implementation407.1.Germany417.2.Poland417.3.Cyprus428.The case-law of the Court of Justice of the European Union on the European arrest warrant438.1.Advocaten voor de wereld case 438.1.1Legal background438.1.2Judgment of the Court of Justice438.2.Szymon Kozlowski case 458.2.1Legal background458.2.2Judgment of the Court of Justice458.3.Santesteban Goicoechea case 468.3.1Legal background468.3.2Judgment of the Court of Justice478.4.Leymann and Pustovarov case 488.4.1Legal background488.4.2Judgment of the Court of Justice488.5 Wolzenburg case498.5.1. Legal background498.5.2.Judgment of the Court of Justice508.6.I.B. case508.6.1Legal background508.6.2Judgment of the Court of Justice518.7.Mantello case528.7.1Legal background528.7.2Judgment of the Court of Justice528.8.Melvin West case538.8.1Legal background538.9.Lopes Da Silva Case549.Practical tips569.1.As an executing authority569.2.As an issuing authority5610.Case studies58Module 8 The European Arrest Warrant and the surrender procedure Version 2.0

Module 8 The European Arrest Warrant and the surrender procedure Version 3.0

Introduction: background and general objectivesRemember that the extradition procedure between the Member States of the European Union was initially organised by the conventions adopted within the framework of the Council of Europe, namely the European Convention on Extradition of 13 December 1957 (Compendium A.2.1.) and its two additional protocols of 15 October 1975 (Compendium A.2.2.) and of 17 March 1978 (Compendium A.2.3.). Because these conventions were somewhat outmoded and cumbersome, efforts have been made by the Member States to simplify them. The most tangible improvements were introduced by certain provisions of the Convention Implementing the Schengen Agreement (CISA) and by two EU conventions of 1995 and 1996 (Compendium B.4.1. and Compendium B.4.2.). For more information on this topic, see Module 2.

It was the conclusions of the European Council of Tampere that first conceived of the abolition of extradition, but solely for the purposes of enforcing a sentence. According to these conclusions, the formal extradition procedure should be abolished among the Member States for persons attempting to flee justice after having been finally sentenced, and replaced by a simple transfer of such persons (paragraph 35). For the remainder, the European Council envisaged a simple acceleration of extradition procedures.

The idea of abolishing extradition was subsequently developed, in particular in the programme of measures to implement the principle of mutual recognition, but this time not just with regards to sentencing but to pre-trial arrangements as well (cf. paragraph 3.1.2. of the programme and paragraph 2.2.1 concerning extradition for the purposes of prosecution). A few days after the terrorist attacks of 11 September 2001, the European Commission presented a proposal to that effect. The initiative was negotiated during the Belgian Presidency, and political consensus was rapidly achieved. It was then formally adopted in the form of Framework Decision (FD) 2002/584/JHA of 13 June 2002 on the European arrest warrant and surrender procedures[footnoteRef:1] (Compendium B.4.3.). [1: OJ L 190 of 18 July 2002, p.1.]

While pursuing the objective laid down in Article 29 of the Treaty on European Union, this Framework Decision is in some ways the culmination of work to simplify extradition between Member States: it replaces existing extradition procedures with a new, faster and simpler system based on the principle of mutual recognition. The Framework Decision of 13 June 2002 was also the first practical application of this principle: the principle of mutual recognition was applied to the European arrest warrant.

Major changes introduced by this new system included: the judicialisation of the procedure. a broadening of the offences for which surrender can take place. a reduction in the conventional grounds for refusing extradition and a relaxation of verifications, based on the idea that substantial verifications should first and foremost be conducted in the issuing State. an acceleration, through the setting of time limits by which the decision on execution of the European arrest warrant and the decision on the surrender of the person requested by the warrant must in principle be taken.

These changes will be studied through an examination of the rules governing the new system.

Indicate here references to your national law transposing the Framework Decision

Definition of the European Arrest WarrantThe European arrest warrant (EAW) is defined as a judicial decision issued by a Member State (MS) with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order (Article 1 of the FD).

There are two key elements to this definition:

Firstly, the fact that it is a judicial decision: this is a core element that reflects the judicialisation of the procedure. In theory, the central authorities, particularly the issuing States central authority, no longer perform a role in the procedure. If they do play a role, it must now merely be providing general information and assistance to the judicial authorities. The Framework Decision states that each Member State may designate a central authority or, where prescribed by its legal system, more than one central authority, to assist the competent judicial authorities (Article 7(1) of the Framework Decision). Certain national implementing laws have, however, attributed a greater role to the central authorities they have designated (for example, in Ireland, the central authority verifies that the warrant is correct as to its form and content before transmitting it to the High Court for assessment of recognition and execution).

Indicate here the authorities and their competences in your national law

Furthermore, the fact that the decision covers the arrest and surrender of a person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order means it covers the pre-trial stage and the sentencing stage. Processing of the European arrest warrant by the issuing authority Acts for which a European arrest warrant can be issued A European arrest warrant may be issued for offences 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[footnoteRef:2] or, where a sentence has been passed or a detention order has been made, for sentences of at least four months (Article 2 of the Framework Decision). [2: Austrian law has concurrent requirements for EAWs issued for the purposes of executing a sentence (see evaluation report: Council doc. 7024/08 of 28 February 2008, p. 37).]

Such a rule entails some broadening of the offences for which surrender can take place: in terms of severity of the penalty imposed in the issuing State (according to Article 2 of the 1996 Convention, extradition shall be granted for offences that are punishable under the law of the requesting Member State by deprivation of liberty or a detention order for a maximum period of at least 12 months) because this definition of the scope refers solely to the law of the issuing State, the severity of the penalty in the executing State is immaterial; in other words, the condition set forth in the 1996 convention requiring the offences to be punishable by the law of the requested Member State by a custodial sentence or detention order with a maximum of at least six months has been discarded (see below on the partial abolition of the verification of double criminality).

scope and double criminality are two separate things. Double criminality is discussed in other modules. the Framework Decision did not establish a minimum sentence remaining to be served, but the handbook (see below) recommends not issuing a European Arrest warrant where the remaining sentence is less than 4 months, even if the sentence handed down was 4 months or more. the Framework Decision does not require the issuing authority to assess the European arrest warrant from the perspective of the principle of proportionality, and its legislation does not necessarily allow it a large margin of discretion: this issue is discussed later on.

In order to address the practical problems posed by the process of issuing and executing the European arrest warrant, the Council of the European Union has drafted the European handbook on how to issue a European arrest warrant. The aim of this Handbook is to provide guidelines with a view to the adoption of good practice based on practical experience to date. It includes an annex containing guidelines on how to fill in the European arrest warrant form. The handbook was revised in 2010 and is available on the Council of the EUs website[footnoteRef:3]. In some Member States, this type of handbook has also been adopted at national level. [3: Council doc. 17195/1/10 REV 1, 17 December 2010 (p.60)]

If this is the case for your country, indicate here the references from your national handbook.

Conditions that must be met by the European arrest warrant The European arrest warrant must meet a series of conditions as to its form, content and language.Formal requirements

The European arrest warrant and the information it must contain must be submitted in the form attached as an annex to the Framework Decision. The form may not be modified, or any of its parts deleted. If a box is not relevant, not applicable should be written, rather than deleting it (cf. Guidelines on how to fill in the European arrest warrant form, annexed to the European handbook on how to issue a European arrest warrant[footnoteRef:4]). [4: Council doc. 17195/1/10 REV 1 (see above).]

Indicate here how to obtain the electronic version of the form. If this form is not available at national level, pursuant to Article 8 of the Framework Decision, the forms are available in all languages from the website of the European Judicial Network. The form can be filled in and printed out using the new EAW Wizard tool for completing a European arrest warrant online, available in all languages on the EJN website.

Practical tip: http://www.ejn-crimjust.europa.eu/eawwizard.aspx

Content requirements

The European arrest warrant must contain specific information (Article 8(1) of the Framework Decision): a) the identity and nationality of the requested personb) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authorityc) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect within the scope of the system d) the nature and legal classification of the offencee) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member Stateg) if possible, other consequences of the offence.

The information listed in a) to f) must always be provided to ensure the satisfactory outcome of the procedure. The form contains fields for several other items of information, although it states some of these are optional. For instance, while some information is seen as essential for an arrest in the executing State, and some is to enable the executing judicial authority to take its decision on the execution of the European arrest warrant, some other items are merely optional.

In practice, it is preferable to provide as much information as possible, since: the status of the information varies from one State to another: some authorities can be more pernickety than others, some of them even going beyond what is required by the Framework Decision (see below); the more information the issuing authority provides, the easier it will in theory be to process the file. If it is better informed, the executing authority will tend to be more trusting, so that any unnecessary additional requests for information may be avoided.

The European Handbook on how to issue a European arrest warrant[footnoteRef:5] also stresses the importance of paying very close attention to the description of the circumstances of the case (box e)). In particular, the circumstances must always be described fully and exhaustively, so that the application of the rule of speciality, ne bis in idem, the possibility of invoking the territorial clause, and the statute of limitations can be assessed. Thus, if the offence is not included in the list, the detailed description should enable the executing judicial authority to assess double criminality. [5: Council doc. 17195/1/10 REV 1 (see above). ]

It is also important to indicate the existence of photographs and fingerprints of the requested person, where they are available.Language requirements

The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. States may make a declaration to the General Secretariat of the Council that they will accept a translation in one or more other official languages of the EU (Article 8(2) of the Framework Decision). Relatively few MS accept a language other than their official language. The final report on the 4th round of mutual evaluations deplores this situation and recommends a more flexible approach to the EAW form and any supplementary information[footnoteRef:6]. [6: Council doc. 8302/2/09 REV 4 28.5.2009 (Recommendation 5 p. 11)]

Languages accepted by the Member States when receiving a European arrest warrant[footnoteRef:7]: [7: Source: The handbook (see above), Annex IV ]

GermanyGerman, French, Dutch[footnoteRef:8] [8: Germany and Austria accept European arrest warrants issued in all the official languages of the issuing States which accept European arrest warrants in German.]

AustriaGerman, French, Dutch, Czech, Slovak

BelgiumFrench, Dutch, German

BulgariaBulgarian

CyprusGreek, Turkish, English

DenmarkDanish, Swedish, English

SpainSpanish[footnoteRef:9] [9: When a European arrest warrant is issued through a SIS alert, the executing judicial authority will provide the translation if it is not in Spanish.]

EstoniaEstonian, English

FinlandFinnish, Swedish, English

FranceFrench

GreeceGreek

HungaryHungarian[footnoteRef:10] [10: Hungary accepts the European arrest warrant in English, French and German in its relations with the Member States which accept language(s) other than their official languages.]

IrelandIrish, English

ItalyItalian

LatviaLatvian, English

LithuaniaLithuanian, English

LuxembourgFrench, German, English

MaltaMaltese, English

NetherlandsDutch, English

PolandPolish

PortugalPortuguese

RomaniaRomanian, English, French

SlovakiaSlovak, Czech with the Czech Republic, Polish with Poland, German with Austria[footnoteRef:11] [11: Based on previous bilateral treaties.]

SloveniaSlovenian, English

SwedenSwedish, Danish, Norwegian, English

Czech RepublicCzech, Slovak with Slovakia, German with Austria

United KingdomEnglish

(tab1_mod8_V30)

Principle of proportionality as a criterion for issue

According to the Framework Decision on the European arrest warrant, the competent authorities of an issuing Member State are not required to verify proportionality before deciding to issue a warrant, since there is no provision for evaluating the pertinence of a European arrest warrant in the particular case. It is, however, important, to follow the recommendations on this subject contained in the European Handbook on how to issue a European arrest warrant[footnoteRef:12]. To curb the growing tendency in certain Member States of resorting to issuing an EAW for all types of offence that meet the formal requirements, in each case an assessment should be made that takes into account all the various elements, including the seriousness of the offence, the measure to be imposed, the resources to be deployed in the executing State and, in particular, the fact that the measure involves deprivation of liberty. A number of MS have introduced proportionality criteria into their law[footnoteRef:13]. Thus, according to the handbook, the European arrest warrant should not be chosen where the coercive measure that seems proportionate, adequate and applicable to the case in hand is not preventive detention or where, although preventive detention is admissible, in the specific case an alternative non-custodial coercive measure may be chosen. As part of the review of the follow-up to the recommendations issued following the 4th round of mutual evaluations[footnoteRef:14], the Council specified, for example, the issue of summons to appear or hearings via videoconference as alternative measures to consider. [12: Revised handbook cited above (pp. 14-15).] [13: Annex to the final report from the Commission on the implementation of FD doc. SEC (2011) 430 of 11 April 2011 also mentions the case of the Czech Republic (p. 57), of Latvia (p. 110), of Lithuania (p. 116), and of Slovakia (p. 151).] [14: Council doc. 8436/2/10 REV2 of 28.5.2010.]

Transmission Between whom?

In theory, the procedure passes between courts; in other words, the warrant is issued by and transmitted directly from the issuing judicial authority to the executing judicial authority. This is the second key element that reflects judicialisation. Nevertheless, a Member State may, if it is necessary as a result of the organisation of its internal judicial system, afford its central authority(ies) responsibility for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. In this instance, the information relating to the designated central authority or central authorities must be communicated to the General Secretariat of the Council (Article 7(2) of the Framework Decision). Any difficulties concerning the transmission or the authenticity of any document required for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States (Article 10(5) of the Framework Decision). These specifications are binding on all authorities of the issuing MS.

Indicate here, as applicable, the designated central authorities in your country

How?

The procedures for the transmission of the European arrest warrant vary depending on whether the location of the requested person is known to the issuing judicial authority. => There are therefore two possible scenarios: Where the issuing authority knows the location of the requested person

If the issuing authority knows the location of the requested person (Article 9 of the Framework Decision), it may transmit the European arrest warrant directly to the executing authority, but if the person is in a Member State that has designated a central authority for receiving European arrest warrants, it will send it to that authority. If it does not know the authority, it may make enquiries through the European Judicial Network to identify it (Article 10(1) of the FD). Given the short time limits for execution, it is advisable that the arrest warrant be translated in advance into one of the languages accepted by the executing Member State. Once the executing judicial authority has been identified, the issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity (Article 10(4) of the Framework Decision)[footnoteRef:15]. There is, however, nothing to prevent the issuing judicial authority from issuing a SIS alert and initiating an Interpol alert (see below). This may even be preferable, since the information on the location of the person may be wrong or, even though the person may reside in the State identified as the executing State, they may be travelling or have fled. [15: The final report on the 4th round of mutual evaluations stresses that many MS nonetheless require the original, and recommends abandoning this requirement (aforesaid document, recommendation 6 p. 12)]

If the judicial authority which receives a European arrest warrant is not competent to act upon it, it automatically forwards it to the competent authority in its Member State and informs the issuing authority accordingly (Article 10(6)).To identify the authority that receives and executes the European arrest warrant in the executing State, consult the Atlas on the website of the European Judicial Network. This provides the information requested if you type in data concerning the place to which the EAW will be transmitted (country, area, region, sub-region, locality and postcode). It may also be useful to contact the European Judicial Network contact point.

Where the issuing authority does not know the location of the requested person

In this instance, the issuing authority will issue an alert in the SIS, pursuant to Article 95 of the Convention Implementing the Schengen Agreement (Compendium B.2.1.), and may or must call on Interpols services[footnoteRef:16]. [16: A third channel is mentioned by the Framework Decision on the European arrest warrant, namely the secure telecommunications system of the European judicial network, but this channel is not yet operational (see Module 4).]

SIS alert: the issuing authority must issue an alert in the SIS, pursuant to Article 95 of the Convention Implementing the Schengen Agreement. Under the previous extradition system, an alert had the same force as a request for provisional arrest (Article 64 of the CISA). Pursuant to the Framework Decision, an alert in the Schengen Information System is equivalent to a European arrest warrant accompanied by the information set out in Article 8(1) (Article 9(3) of the Framework Decision). The number of alerts for the purposes of arrest and surrender is constantly increasing (28,666 in 2009, compared with 24,560 in 2008 and 19,199 in 2007, and in 2009 represented 82.5% of all EAWs issued by the States participating in the SIS)[footnoteRef:17]. [17: Source: annex to the final report from the Commission on the implementation of the FD, doc. SEC (2011) 430 p. 14.]

This use of a SIS alert is, however, on a transitional basis, due to two types of technical limitations currently facing the SIS:

a) A technical limitation associated with the information and documents transmitted: at present, the SIS does not allow either the transmission of all the information listed in Article 8(1) of the Framework Decision or a scanned version of the European arrest warrant itself. Therefore, as long as this type of limitation exists, the procedure is as follows: some of the information required by Article 8(1) will be transmitted through an alert in accordance with Article 95 the additional information required will be transmitted by the Sirene bureaux via what are known as A and M forms: these are not entered into the SIS but sent by the Sirene bureau of the issuing State to the other Sirene bureaux note that almost all the Member States use English as the working language for this type of exchange of information so that, in the event of a hit in the SIS (i.e., if the person is located in one of the States connected to the SIS), the State in which the person is located has basic, understandable information that it can use to place the person in custody pending receipt of the translation subsequently, the original and if necessary the translation of the European arrest warrant must be transmitted within a certain period following the arrest, which varies depending on the Member State (see below). There are differences between the Member States as regards the time limit for transmission following the arrest of the requested person. Complying with the specified time limit is imperative, since the person may be released if this has expired.

b) A technical limitation associated with the number of Member States connected: as of November 2010, 24 Member States of the European Union are connected to the SIS, that is, all 27 Member States minus the United Kingdom, Ireland and Cyprus. Iceland, Norway, Switzerland and Liechtenstein (since December 2011) are also connected to the SIS. However, these four States are not, as such, subject to the system established by the Framework Decision of 13 June 2002, but to a specific system very similar to that of the European arrest warrant, and which is applicable between the EU Member States and some of these Schengen partners (see below). Until such time as the other Member States are connected, the issuing authority must call upon Interpol.

The SIS II (second generation SIS) is under development. Initially, the objective of establishing a SIS II was to do away with these two types of limitation: as originally designed, the SIS II would not only enable all the Member States to be connected but also revamp the SIS. The intention was to introduce new aims, to expand access to other authorities and to integrate new information. However, the two aspects have become separated. Because substantial difficulties and delays were encountered in the revamping of the SIS, the Justice and Home Affairs Council of 5 December 2006 decided to extend the SIS to 9 of the new joining Member States (this did not initially include Bulgaria and Romania, and Cyprus has not joined the project), without awaiting implementation of the SIS II. An interim, provisional technical solution based on the existing system (known as SISone4all), has therefore been brought into being and has in theory been operating in most Member States since September 2007. The SIS II, with new aims and new information, is scheduled to come into operation in Spring 2013. With this new SIS, it will be possible to transmit all the necessary information as well as a scanned version of the European arrest warrant itself. This will therefore be equivalent to transmission of the original and will be immediately available, and a translation of the European arrest warrant will then simply need to be forwarded. Furthermore, the SIS II will also contain biometric data. The legal basis for SIS II is Council Decision 2007/533/JHA of 12 June 2007[footnoteRef:18] (for more information on the SIS, see Module 5). [18: OJ L 205, 7 August 2007, p. 63.]

Recourse to Interpol (Article 10(3) of the Framework Decision): the issuing authority may or must call on Interpol, of which all the EU Member States are members (cf. the I24/7 communication system, the diffusion system and the Red Notices system in Module 5). This system is even more valuable while not all the Member States of the European Union are connected to the SIS. For the Member States not yet connected to the SIS, note, however, that an Interpol international alert is equivalent to a request for provisional arrest but not to a European arrest warrant. After SIS II comes into operation, calling on Interpol will continue to be of value when the issuing State does not know the location of the requested person, since it can be used to contact third countries that are not EU Member States (see Module 5).

When?Although the alert has the value of a request for provisional arrest and EAW, where it is accompanied by the information listed in Article 9(3) of the FD, the latter does not in itself contain a provision on provisional arrest, and does not fix further time limits for receipt of the EAW following arrest of the requested person. There are significant differences between MS in this regard. The follow-up to the final report on mutual evaluations indicates that a time limit of 6 days would be reasonable[footnoteRef:19]. [19: Council doc. 8436/2/10 REV2 of 28.5.2010, p. 3.]

Time limits for receipt of the European arrest warrant following an arrest of the requested person[footnoteRef:20]: [20: Source: Revised handbook (Annex V)]

NB: The time limits are stated as calendar days, unless otherwise indicatedLatvia48 hours

Lithuania48 hours

Luxembourg6 working days

Malta48 hours[footnoteRef:21] [21: Prior arrest of the person only in exceptional cases. Where there is a SIS alert, this is deemed to be an EAW, and the court may set a deadline for receipt of the EAW.]

Netherlands23 days where the arrest is on the basis of a SIS alert; in other cases, as soon as possible.

Poland48 hours[footnoteRef:22] [22: The Polish authorities must obtain a guarantee within 48 hours, by any means capable of producing written records, that a European arrest warrant has in fact been drawn up.]

PortugalThe time limit is left to the discretion of the court, usually 10 days.

Romania48 hours

Slovakia18 days for receipt of the original and the official translation (release of the person at the request of the prosecutor); 40 days (mandatory release of the person)

Slovenia10 days

SwedenAs quickly as possible (a few days, on decision of the prosecutor)

Czech Republic40 days

United Kingdom48 hours[footnoteRef:23] [23: Prior arrest of the person only in exceptional cases. If the EAW is requested, it must be provided or the person is released.]

Germany40 days

Austria40 days

Belgium10 days

Bulgaria24 hours

Cyprus3 days (provided the EAW has been issued prior to the arrest of the requested person)

DenmarkAs quickly as possible or, insofar as possible, within 10 days[footnoteRef:24] [24: The original or copy of the EAW is not required if the information resulting from the Schengen alert is sufficient.]

SpainAs quickly as possible, and always within 10 days

Estonia3 working days

FinlandAs quickly as possible or, on request, within a deadline set by the Finnish competent executing authority

France6 working days

Greece15 days, with a possibility of extending the deadline to 30 days

Hungary40 days

Ireland7 days[footnoteRef:25] [25: In principle, arrest only takes place after the EAW has been endorsed by the High Court once Ireland is connected to the SIS (although at present this process appears to have stalled), the arrest may, on an exceptional basis, be made before this endorsement. In this instance, the EAW, translated into English or Irish, must be transmitted within 7 days. ]

Italy10 days

Processing of the European arrest warrant by the executing authorityFlagging: the possibility of blocking execution of the European arrest warrant upon entry of the alert in the SIS

When an alert is entered in the SIS by the issuing State, this alert must also be processed by the SIS central authority in each of the other States. A check is therefore conducted before activating the alert in the national territory. This check is currently governed by the provisions of the Schengen convention regarding extradition, which creates a degree of conflict with the Framework Decision on the European arrest warrant.

Under the Schengen convention, an indicator of validity (or, to use EU jargon, a flag) may be attached to the alert in question, preventing the persons arrest for 24 hours. At the end of this 24 hours, the prohibition of arrest is either confirmed on legal grounds or for special reasons of expediency or withdrawn. In exceptional cases, this 24-hour time limit may be extended by up to one week.

This flagging may be perfectly justified: there are instances where it is certain that a person cannot be surrendered (for example, because he is 14 years old, whereas the age of criminal responsibility in the executing State is never lower than 16) and an arrest, even for a limited duration, must consequently be avoided.

The system established by the Schengen convention partially contradicts the Framework Decision on the European arrest warrant, since it could entail that arrest is prevented (which could de facto equate to non-execution of the European arrest warrant): by a decision taken by an administrative authority (the SIS central authority), whereas the Framework Decision states that the decision on execution is taken by a judicial authority on legal grounds or for special reasons of expediency, whereas the Framework Decision provides for closed and narrowly-defined grounds for refusal.

It would, for example, be problematic if an administrative authority in charge of the SIS were to decide, at its own initiative, to enter a flag based on a double criminality or ne bis in idem requirement, since these are often complex legal issues that must be examined by a judicial authority.

The possibility of using flagging is retained in the new rules that will shortly apply to the SIS II, but will be more strictly defined[footnoteRef:26]. A flag may therefore be added in two instances: [26: Article 25 of Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ L 205, 7 August 2007, p. 63).]

where the European arrest warrant in question has already been the subject of a normal procedure that has led to a decision of non-execution, and where the judicial authority that took this decision has requested the addition of a flag (= a posteriori flagging) where a competent judicial authority (for example a court exercising certain centralised powers) has asked the SIS central authority to add a flag, either in the specific case (most probably referred by the SIS central authority) or by means of a general instruction (for example on the issue of minors) (= a priori flagging), but only if it is obvious that the execution of the European arrest warrant must be refused.

Given the potential contradictions between the current text of the Schengen convention and the Framework Decision on the European arrest warrant, it is clearly preferable for the national authorities to choose to opt for the solutions contained in the decision on SIS II, even if these are not yet mandatory. Note the interesting example of France, where a judge is a permanent presence at the SIS central authority who ensures that there is judicial supervision of flagging at source.

Flagging should be distinguished from the deletion or correction of an alert under Article 111 of the Convention implementing the Schengen Agreement (CISA). In the latter, the request may be made in any participating State, and the decision then enforced in the other States. The relationship between the two situations is, however, vague, and the final report on mutual evaluations states that this point should be examined further[footnoteRef:27]. [27: Final report (see above), recommendation 14 p. 19)]

Obligation to arrest and the rights of the person concernedBased on the European arrest warrant or on the SIS alert, the necessary measures must be taken in the executing Member State to locate and arrange for the arrest of the requested person.

The Framework Decision of 13 June 2002 expressly enshrines two rights in favour of a requested person who is arrested:a) when a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority (Article 11(1) of the FD). This information should take the form of a letter of rights, for which an indicative model is published in an Annex to Directive 2012/13/EU of 22 May 2012 (Compendium B.6a.1.)[footnoteRef:28]. [28: Article 5 and Annex II of Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, OJ L 142 of 1/6/2012. This instrument must be transposed into national law no later than 2 June 2014.]

A requested person who is arrested also has a right to be assisted by a legal counsel and by an interpreter (Article 11(2) of the FD). Access to interpretation is governed by the provisions of Directive 2010/64/EU of 20 October 2010 in the same way as for any suspect or accused person in a national procedure (Compendium B.6a.2.)[footnoteRef:29]. For other cases, arrest and detention will be governed by the international obligations incumbent on the executing State including Article 5 of the European Convention on Human Rights and by the domestic law of the executing State. The executing judicial authority will therefore decide whether the arrested person should remain in detention in accordance with its national law. Pursuant to that law, the authority may order the persons provisional release, provided the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding (Article 12 of the Framework Decision). [29: Article 2(7) of Directive 2010/64/EU of 20/10/2010 on the right to interpretation and translation in criminal proceedings (OJ L 280 of 26/10/2010). This instrument must be transposed into national law no later than 27 October 2013.]

The Framework Decision lays down further requirements regarding the rights of the person concerned:a) regarding consent to surrender given by the person concerned and, if appropriate, renunciation of entitlement to the speciality rule (cf. Article 13 of the FD)b) regarding the hearing of the person concerned: where the arrested person does not consent to his or her surrender, he or she will be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State (cf. Article 14 of the FD).Surrender decisionTime limits for the decision to be taken and situation pending the decision

Since one of the main objectives of the new system is the acceleration of procedures, all European arrest warrants are to be dealt with and executed as a matter of urgency (Article 17(1) of the Framework Decision), and time limits for taking the decision on surrender have been laid down.

There are two separate scenarios:

a) either the person consents to the surrender: in this case, the final decision on surrender should be taken within a period of 10 days after consent has been given (Article 17(2) of the Framework Decision) Note that although the consent may not, in principle, be revoked, some Member States (DK, FIN, SE, BE) have made use of the possibility of declaring that revocation is possible (Article 13(4) of the FD). In such cases, the period between consent and revocation shall not be taken into consideration in establishing the time limits within which the decision to execute the EAW must be taken.b) or the person does not consent to the surrender: in this case, the final decision on the execution of the European arrest warrant should be taken within 60 days of the arrest (Article 17(3) of the Framework Decision)

If these deadlines cannot be met, an extension of 30 days is possible, but the executing judicial authority must immediately inform the issuing judicial authority, giving the reasons for the delay (Article 17(4) of the Framework Decision).

Where, in exceptional circumstances, a Member State cannot observe the time limits provided for, it shall inform Eurojust, giving the reasons for the delay (Article 17(7) of the Framework Decision).

If the person enjoys a privilege or immunity, these time limits shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request to exercise that power, but it shall be for the issuing judicial authority to request it in all other cases (Article 20).

Pending its decision, and where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must either agree that the requested person should be heard according Article 19 of the Framework Decision or agree to the temporary transfer of the requested person (Article 18 of the FD). The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities.

Cases in which execution may or must be refused

In principle, the European arrest warrant must be executed, but no possibility of refusal is ruled out. This is, however, strictly regulated. Reasons must be given for any refusal (Article 17(6) of the Framework Decision). Any non-execution must be based on one of the permitted grounds for non-execution. Compared with the previous instruments governing extradition, the grounds for refusal to execute are markedly more restricted: a) two grounds for refusal have simply been abolished: one based on the political nature of the offence one based on the nationality of the person concerned: in doing so, the Framework Decision of 13 June 2002 on the European arrest warrant takes account of European citizenship. Note that the fact that the requested person is a national of the executing State is not mentioned among the reasons for refusal and cannot be grounds for a decision of non-execution. Two specific rules are, however, applicable (see below): for a European arrest warrant for the purposes of conducting a prosecution: the executing State may require that the requested person serve their sentence in their territory if the proceedings result in a conviction. for a European arrest warrant for the purposes of serving a sentence: the executing State may decide that the sentence in question should be served in their territory. In this case, the European arrest warrant is executed even if the person is not actually surrendered to the issuing State.The fact that the requested person is a national of the executing Member State sometimes has the effect of modulating certain optional grounds for refusal, such as the territoriality clause (see below).b) others have been relaxed: this the case for the double criminality requirement, which traditionally allows States to refuse to give their support for the suppression of acts that do not constitute offences in their own law. Verification of this requirement has in fact been partially abolished (see below).

Among the grounds for non-execution of the European arrest warrant expressly laid down as such by the Framework Decision, three are mandatory, others are optional.

The three mandatory grounds for non-execution (Article 3 of the FD)

a) Amnesty (Article 3(1) of the FD): if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, but only when that State has jurisdiction under its own criminal law to prosecute the offence in parallel to the issuing State.b) Ne bis in idem (Article 3(2) of the FD): if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been a sentence, the sentence has been served or is currently being served or may no longer be executed under the laws of the sentencing Member State. Unlike the provisions of the previous instruments governing extradition, this condition is relative, in that it does not automatically require verification by the executing judicial authority. This change is due to the dynamics of the new system, under which such verification takes place principally in the issuing State. Having said this, if the executing judicial authority is notified of the existence of such a final sentence, (see below the Mantello judgment of the CJEU), it must draw its own conclusions, i.e. refuse to execute the warrant (see Module 9 for more information on ne bis in idem in transnational relations).c) Criminal responsibility (Article 3(3) of the FD): where the person concerned, due to his or her age could not yet have been held criminally liable for the acts in respect of which the decision was passed under the law of the executing State. The rules on the age of criminal responsibility vary considerably from one Member State to another.

Optional grounds for non-execution (Article 4 of the FD)

The Framework Decision of 13 June 2002 lists 7 instances where the executing judicial authority may refuse to execute the European arrest warrant. These seven optional grounds for non-execution according to the Framework Decision are the following:

a) Absence of double criminality (Article 4(1) combined with Article 2 of the Framework Decision): if the European arrest warrant is based on acts that are not one of the offences for which the double criminality test has been abolished, and in these circumstances the double criminality test has not been met. The possibility of verifying double criminality is therefore still the rule, but in practice this verification has been largely abolished. The Framework Decision provides that verification may take place only in the cases foreseen in paragraph 4 of Art 2 meaning that the offence is not included in the conditions settled in paragraph 2 of the same article.

The reference to the law of the issuing State, rather than that of the executing State, is crucial in explaining this limitation of the verification of double criminality. The executing judicial authority may therefore not verify whether the classification of the offence corresponds to that of its domestic law (or, by extension, the severity of the penalty). In other words, the executing authority must confine itself to checking that the issuing authority has ticked one of the 32 boxes in the list contained in the certificate or warrant (see below)[footnoteRef:30]. [30: At most, execution might be refused based on the fact that there is a manifest discrepancy between the description of the acts and the box ticked in the list. It should also be noted that not all national legislation implementing framework decisions on mutual recognition are necessarily consistent with those decisions, so the executing authority may find itself faced with contradictory indications.]

Moreover, the descriptions used in this list do not correspond to legal classifications. The wording is generic. These 32 categories of offence should be interpreted flexibly by the issuing authority when completing the certificate or warrant. It is of course not required that exactly the same terms (e.g. sabotage) are used in domestic law. Verification of double criminality is also no longer exercised with regards to attempts at or complicity in one of the 32 categories of offences, except in Bulgaria, Denmark and Poland[footnoteRef:31]. [31: Source: annex to the final report from the Commission on the implementation of the FD doc. SEC (2011) 430 p. 11.]

See below for the judgment of the Court of Justice in the Advocaten voor de wereld case concerning the compatibility of Article 2(2) of the Framework Decision with Article 6(2) of the EU Treaty.

b) Ongoing prosecution in the executing State for the same act (Article 4(2) of the FD). This is normally the case where the person is already being prosecuted for the same acts when the executing authority receives the EAW, but some implementing laws have applied this provision differently: for example, in Austria, an EAW issued in respect of a national for offences committed abroad will be sent to the national prosecution authorities if the offences are also punishable in Austria in order to initiate a new procedure in Austria[footnoteRef:32]. [32: Source: final report from the Commission (SEC(2011) 430 see above p. 3).]

c) Extension of the ne bis in idem principle to decisions adopted in the executing Member State not to prosecute or to halt proceedings in respect of the same acts, preventing further proceedings (Article 4(3) of the Framework Decision). This ground for refusal largely corresponds to the broad interpretation given by the CJEU to Article 54 of the Convention implementing the Schengen Agreement in the Gzutc and Brgge case (see Module 9). According to this interpretation, it is therefore logical to consider that this ground for non-execution has become mandatory. d) Extension of the ne bis in idem principle to third States (Article 4(5) of the FD): if the executing judicial authority is informed that the requested person has been finally judged by a Member 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 laws of the sentencing country.e) Statute of limitations (Article 4(4) of the FD): where the criminal prosecution or punishment of the requested person is statute-barred according to the law of the executing Member State, but only when the acts fall within the jurisdiction of that Member State under its own criminal law.f) Nationality or residence in the executing State (Article 4(6) of the Framework Decision): if the European arrest warrant has been issued for the purposes of executing a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law. For example, if a European arrest warrant is issued in respect of person X, a national or resident of State A, by a court in State B for the purposes of execution of a sentence, the judicial authority of State A may refuse to execute the warrant and to surrender X, but will undertake to execute the sentence in accordance with its domestic law[footnoteRef:33]. [33: The final report on the 4th round of mutual evaluations noted, however, that for some MS that use this ground for refusal, the legal basis for execution of the sentence in the executing MS is deficient (Council doc. 8302/4/09 REV 4 COR 1).]

Several Member States apply these provisions differently, depending on whether the requested person is or is not a national: the ground for refusal is mandatory in the first instance, and optional in the second (for example in AT[footnoteRef:34] and in DE[footnoteRef:35]), or simply not applicable to non-nationals (SE[footnoteRef:36]). This is also reserved solely for nationals in France. [34: Source: final report from the Commission (SEC(2011) 430 see above p. 36.] [35: Article 83b, paragraph 2 of Gesetz ber die Internationale Rechtshilfe in Strafsachen.] [36: Section 6, chapter 2 of law 2003: 1156 of 30 December 2003.]

The Court of Justice has already been called upon on three occasions concerning matters of interpretation of this provision: in the Szymon Kozlowski case, in the Wolzenburg case, and in the Lopes da Silva Jorge case (see below section 8).The surrender of nationals on the basis of an EAW has also been the subject of a number of judgments from national courts (see below section 7).

Execution should be possible even if the acts that gave rise to the final sentence are not punishable in the executing MS[footnoteRef:37]. Where the executing Member State undertakes to execute the sentence instead of surrendering the person who is the subject of the European arrest warrant (or where execution of the warrant is subject to returning the person to the executing Member State in order to serve their sentence there see below), the provisions of Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU (Compendium B.5.5. see Module 10) applies mutatis mutandisto the extent that they are compatible with those of the FD on the EAW (Article 25 of FD 2008/909). However, this instrument allows (Article 7(4)) Member States to declare they will refuse to execute the sentence where there is no double criminality (PL, IE and AT have made a declaration to that effect[footnoteRef:38]). The final report notes differences that could cause difficulties[footnoteRef:39]. It is recommended that any problem encountered in this regard is reported to the government, which may refer the matter to the Commission, which is responsible for the report on the transposition of FD 2008/909/JHA. [37: The accompanying document to the final report from the Commission on the implementation of the FD indicates that this is the case in AT, LU, SI, SE, but not in HU, LV, NL, PL, PT or RO (doc. SEC (2011) 430 p. 10).] [38: Cf., for Ireland, OJ L 91, 29 March 2010, p. 28. For Austria, see Council doc. 5698/12 of 26 January 2012, and for Poland, doc. 5650/12 of 26 January 2012.] [39: Final report on the fourth round of mutual evaluations, p. 14)]

g) Territoriality clause (Article 4(7) of the FD): where the European arrest warrant relates to offences that: Are either (letter a) regarded by the law of the executing State as having been committed in whole or in part in the territory of the executing State or in a place treated as such. For example, if a murder has been committed by X in the territory of State A, where the victim is a national (Y) of State B and a judicial authority of State B issues a European arrest warrant against X, the executing authority of A may refuse to execute the warrant, since the murder was committed in its own territory Or (letter b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. For example, if a murder has been committed by X in the territory of State C, where the victim is a national (Y) of State B and a judicial authority of State B issues a European arrest warrant against X, the executing authority of State A may refuse to execute the warrant if its domestic law does not allow prosecution of murders committed outside its territory.

In a number of Member States, these provisions, particularly those of subparagraph (a), are applied differently depending on whether the requested person is a national of the executing Member State (for example, in DE[footnoteRef:40] and in PL[footnoteRef:41]). [40: Cf. Article 80 of Gesetz ber die Internationale Rechtshilfe in Strafsachen.] [41: Article 55 of the Polish Constitution.]

Many national implementing laws have made these grounds for non-execution, or some of them, mandatory grounds for non-execution. In practice, to determine the precise status of these grounds for non-execution, the content of the national implementing laws should therefore be checked. Where the executing authority has doubts as to the existence of a ground for refusal, it is advisable to contact the issuing authority direct for any supplementary information (Article 15(2) of the FD) in order to clarify the situation and adopt a decision in full knowledge of the facts.

Beyond these questions regarding the optional or mandatory status of grounds for non-execution, we must be aware that many national implementing laws have introduced other grounds for non-execution not provided for by the framework decision on the European arrest warrant[footnoteRef:42]. Note, in this regard, the special case of breach of human rights. [42: The mutual evaluation report on Italy recommends the removal of no less than 9 grounds for refusal in Italian law (doc. 5832/2/09 REV 2, point 7.3.2.1.a). Some have been substantially moderated by the Court of Cassation.]

Indicate here the specifics of your national implementing law and the relevant case-law where appropriate

The special case of human rights

Among the grounds for mandatory or optional non-execution of the European arrest warrant, the Framework Decision makes no explicit mention of either the humanitarian or the non-discrimination clause, or a general clause to the effect that there should be no surrender if there are valid grounds for believing that it would breach the persons fundamental rights. However, the preamble to the Framework Decision does refer to the humanitarian or non-discrimination clause (see recital 13), and its Article 1(3) states that it 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. National legislators have transposed the Framework Decision in different ways in this respect: Some have made no provision at all for a ground for non-execution on the basis of fundamental rights (such is the case in Luxembourg and Spains legislature) others have introduced the humanitarian or non-discrimination clause only (e.g. French legislature), or a general human rights clause only (such as in Belgian law) others have even inserted both (Greek law, for example) or have expanded on the grounds for refusal on the basis of fundamental rights (e.g. the United Kingdom and Italy, which has, inter alia, inserted a ground for refusal on the basis of lack of a maximum duration for pre-trial detention).

Judicial authorities have also responded differently. Some of them have shown moderation, while others have been bold and others highly suspicious.

How should you respond? It is best to respond in a balanced fashion, taking account of two essential concerns simultaneously: firstly, there can be no question of breaking with the philosophy underpinning the entire principle and mechanism of mutual recognition, namely mutual confidence and the idea that verifications should first and foremost be carried out in the issuing State. Secondly, the executing authorities cannot evade due respect for fundamental rights.

In this delicate exercise, the executing authority will have to ask itself two fundamental questions in order to navigate the process of mutual recognition: could the alleged violations of fundamental rights be invoked before the courts of the issuing State and be duly taken into account by those courts? is the executing authority sufficiently well placed, particularly in view of the inherent complexity of all national legal systems, to assess whether there is a possible breach of a fundamental right in the issuing State[footnoteRef:43]? [43: The European Court of Human Rights has recognised that it would be more pertinent for the assessment of any unduly lengthy period between the acts and the prosecution, as regards the principle of a fair trial, to take place in the MS issuing the EAW rather than in the MS executing it (2011 (EUR Court HR, 4 May 2010, Stapleton v Ireland, Application 56588/07)).]

the position taken should draw on the case-law of the CJEU concerning asylum applications[footnoteRef:44] whereby, if we assume that the treatment of asylum seekers respects fundamental rights in all MS, this assumption is rebutted is there are substantial grounds for believing that there are, in the MS normally competent to consider such requests, systemic violations of these rights that may result in an inhuman or degrading treatment within the meaning of Article 4 of the Charter. [44: CJEU, 21 December 2011, Joined Cases N.S. and M.E., C-411/10 and C-493/10. This case-law echoes a judgment of the European Court of Human Rights of 21 January 2011 (EU Court HR, 21 January 2011, M.S.S. v Belgium and Greece, 30696/09). ]

the Court of Justice is due to give its judgment shortly, as part of a preliminary ruling[footnoteRef:45]. [45: Case C-396/11. The conclusions of the Advocate General, dated 18 October 2012, supported recognition of the possibility of refusing execution where it is shown that the human rights of the person whose surrender is requested have been infringed, or will be infringed, but this refusal may only be made in exceptional circumstances where the infringement is such as fundamentally to destroy the fairness of the process and past infringements that are capable of remedy will not found such an objection.]

Conditional surrender

In three scenarios, the executing judicial authority may make the surrender subject to obtaining certain guarantees from the issuing authority (Article 5 of the Framework Decision):Decisions in absentia

Where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia, and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment. For the executing judicial authority, the requirement for such assurances is theoretically only optional and not mandatory: according to the Framework Decision, that authority may, but need not necessarily, require them.Under the new Framework Decision 2009/299/JHA of 26 February 2009 (Compendium B.5.8.)[footnoteRef:46] which should be transposed no later than 28 March 2011[footnoteRef:47]) a new Article 4a has been inserted into the Framework Decision on the European Arrest Warrant. These new provisions replace this system of conditional surrender. They allow, subject to certain conditions, refusal to execute the EAW if the person did not appear in person at the trial resulting in the decision. For further information, see Article 2 of Framework Decision 2009/299/JHA. The previous system nevertheless remains in force in respect of judgments in absentia handed down in Italy, which has declared, as authorised by Article 8(3) of FD 2009/299, that it will only apply it from 1st January 2014 at the latest. [46: OJ L 81, 27 March 2009, p. 24. ] [47: As at 10 October 2012, only Bulgaria, Denmark, Latvia and the Netherlands had notified their implementing legislation. ]

Life sentences and life-time detention orders

If the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure. As with the previous scenario, this option is only available to the executing judicial authority.Nationality and residence

Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. This is the second qualification made to the abolition of the ground for refusal on the basis of nationality. For example, if a European arrest warrant is issued in respect of a person X, a national or resident of State A, by a court in State B for the purposes of prosecution, the judicial authority of State A may make the surrender of X subject to the return of X, after being heard, to serve the custodial sentence or detention order passed against him in State B. See the observations on Article 4(6) of the FD above, and in particular the impact of Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (Module 10).See also the judgment of the Court of Justice in the I.B. case concerning combinations of the conditions laid down in Article 5(1) and (3).

Decision in the event of multiple requestsEuropean arrest warrants issued by two or more Member State (Article 16(1) and (2) of the Framework Decision)

If two or more Member States have issued European arrest warrants for the same person, the executing judicial authority shall make their decision with due consideration of: all the circumstances and especially the relative seriousness of the offences and the place where they were committed the respective dates of the European arrest warrants whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order.

The advice of Eurojust may be sought, but this will not be binding. An annex to Eurojusts 2004 annual report contains guidelines concerning decisions in the event of multiple arrest warrants for the same person and the same offence or for different offences, for the purposes of prosecution or execution of a sentence[footnoteRef:48]. [48: The annual reports are available on Eurojusts website.]

Conflict between a European arrest warrant and a request for extradition presented by a third country (Article 16(3) of the Framework Decision)

The Framework Decision does not expressly state that the European arrest warrant takes precedence over a request for extradition from a third country. It simply states that the executing State must choose between the two competing requests with due consideration of all the circumstances. Nevertheless, since the aim is to establish a European criminal law-enforcement area between the Member States of the European Union and to create mutual confidence, except in special cases it would a priori seem logical to give precedence to a request from another Member State. Appeals

The Framework Decision itself makes no provision regarding any appeals against a decision taken by the executing judicial authority concerning surrender. The rules on the matter are governed by the executing States domestic law. It should be noted, however, that the time limits set forth in Article 17 (see above) also apply to appeals.

Indicate here the specifics of your national implementing law

Notification of the decision to the issuing authority

The decision on the action to be taken on the European arrest warrant must be notified immediately to the issuing authority by the executing authority (Article 22 of the Framework Decision).It is also important to inform the issuing authority about the progress of the execution process. In the follow-up to the evaluations report, a form was proposed to this effect and introduced into the revised version of the handbook[footnoteRef:49]. [49: Annex VIII to the revised handbook (see above)]

The surrender itselfTime limitsPrinciple

The person requested will be surrendered as soon as possible on a date agreed between the authorities concerned (Article 23(1) of the Framework Decision). He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. If the surrender within this time limit is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed (Article 23(2) and (3) of the FD).Temporary postponement of the surrender for serious humanitarian reasons

The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. However, as soon as these grounds have ceased to exist, the executing judicial authority shall immediately inform the issuing judicial authority and agree on a new date for the surrender to take place (Article 23(4) of the FD).Failure to comply with the above time limits

If the above time limits expire, the person shall be released (Article 23(5) of the FD).Postponed or conditional surrender

The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant (Article 24(1) of the FD).

There is an alternative: instead of postponing the surrender, the executing judicial authority may temporarily surrender the person to the issuing Member State, under conditions to be determined by mutual agreement in writing (Article 24(2) of the FD).

Effects of the surrenderDeduction of the period of detention served in the executing Member State (Article 26 of the FD)The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing Judicial authority to the issuing judicial authority.

Speciality rule and exceptions (Article 27 of the FD) Under the speciality rule, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. However, this rule is deprived of much of its substance, since the Framework Decision makes it conditional on two types of exception: it does not apply in the seven cases listed in Article 27(3) it does not apply between the Member States that have notified the General Secretariat of the Council that consent is presumed to have been given for persons surrendered to be prosecuted, sentenced or detained for an offence committed before the surrender and other than that for which he or she was surrendered (only AT and EE have made such a declaration). Even when such notification has been given, the executing authorities retain the option, in specific cases, of providing otherwise in the decision to surrender.

On the interpretation of Article 27 of the FD, see (below) the judgment of the Court of Justice in the Leymann and Pustovarov case.

Note that the FD does not contain any provision on accessory surrender (the ability to surrender the person at the same time for acts that fall within the scope of the FD and for offences that do not fall within this scope, contrary to the Council of Europe extradition convention (Article 2(2)). The situation varies between Member States[footnoteRef:50]. In addition, prosecution for previous acts not covered by the EAW, but which are not punishable by a penalty involving deprivation of liberty, is authorised under Article 27(3) b), c) and d). [50: Final report on the fourth round of mutual evaluations (p. 16) and final report from the Commission (SEC (2011) 175, p. 9).]

Indicate here the specifics of your national implementing law

Surrender or subsequent extradition (Article 28 of the FD)Where a person X has been surrendered by executing State A to issuing State B, the latter may not then surrender the person to another Member State C or extradite him or her to a third State for an offence committed prior to the initial surrender, without the executing State A having given its consent to this surrender or this subsequent extradition. In the case of a subsequent surrender to another Member State, however, this principle, is deprived of much of its substance in that: a) in three scenarios, the subsequent surrender to a Member State may take place without the consent of the executing State A (paragraph 2).

b) the executing State As option of refusing subsequent surrender to another Member State is limited and subject to rules: State A must consent to the surrender when the offence for which surrender is requested entails an obligation to surrender (paragraph 3).

c) Each Member State may notify the General Secretariat that, in its relations with other Member States which have given the same notification, it consents to the subsequent surrender of the person to a Member State other than the executing Member State for offences committed prior to surrender. None of the Member States have made use of this option. Even when such notification has been given, the executing authorities retain the right, in specific cases, of providing otherwise in the decision to surrender (paragraph 1).

The Court of Justice has stated that where there is more than one successive warrant, the executing MS that must indicate its consent is the one that made the last surrender: see below the Melvin West case.Note that these three relaxations of the rule do not apply in the case of subsequent extradition to a third State (Article 28(4) of the FD).

Relation to other legal instruments and the application of the European arrest warrant over time Relation to other legal instruments (Article 31 of the DC)From 1 January 2004, the Framework Decision of 13 June 2002 replaced the following existing conventions between the EU Member States[footnoteRef:51]: [51: Note, however, that the FD does not necessarily apply to regions outside Europe. For example, NL has indicated that the framework decision and the law on surrender only apply to parts of the Netherlands that are in Europe (i.e. not between the Netherlands Antilles and Aruba and the EU Member States).]

a) the 1957 Convention of the Council of Europe and its protocols, as well as the provisions relating to extradition in the 1977 European Convention on the suppression of terrorismb) the Convention of 16 May 1989 between the MS of the EC on the simplification and modernisation of methods of transmitting extradition requestsc) The EU extradition conventions of 1995 and 1996d) the provisions (Title III, Chapter 4) of the Convention Implementing the Schengen Agreement.

However, these texts do not necessarily cease to apply:a) between Member States: consideration should be taken not only of the rules governing the application of the Framework Decision over time (see below), but also of any annulment by specific national constitutional courts of domestic implementing legislation. In the event of annulment, the resultant legal vacuum has to be filled, and it is logically the old rules that are then applied (see the case of Germany below, before the entry into force of the law of 25/7/2006).b) between Member States and third States: the pre-existing provisions continue to apply. For instance, the conventions of the Council of Europe continue to apply in relations between Member States and third States.

On the interpretation of Article 31 of the FD, see (below) the judgment of the Court of Justice in the Santesteban Goicoechea case.

Article 31(2) also allows MS to continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged. Thus, DK, SE and FIN continue to apply the uniform legislation in force between the Nordic States between them[footnoteRef:52]. [52: Declarations in OJ L 246 of 29/9/2003, p. 1.]

NOTE: arrangements with the Schengen partners

a. The extradition system, with the improvements already introduced by the Schengen convention, currently continues to apply with the Schengen associate states, namely Iceland, Norway and Switzerland, since these States are not bound by the Framework Decision on the European arrest warrant, which is not a development of the Schengen acquis. b. However, solely in the case of relations between the EU Member States and Norway and Iceland (and therefore not with Switzerland or Liechtenstein), it should be noted that an agreement was concluded on 28 June 2006 on a surrender procedure (Compendium B.8.3). This agreement, which is not yet in force, establishes a procedure that is almost identical to that of the European arrest warrant: judicialisation, scope of the SIS alert etc., albeit with some slight differences, including: double criminality: verification of double criminality still applies, but each of the States concerned may declare that, on condition of reciprocity, it will abolish this verification in the same instances as those provided for the European arrest warrant. political offence: the exception for political offences is removed, but this removal may be limited to specific terrorist offences. surrender of nationals: the basic rule is identical to that of the European arrest warrant, but one of the States concerned may declare that it will refuse to surrender its nationals.

Application of the European arrest warrant over time (Article 32 of the FD)Requests for surrender received before 1 January 2004 are still governed by the previous instruments. This will apply only as long as the extradition procedure is in force. This procedure may result in a refusal to extradite. Although the matter is not regulated in the Framework Decision, it appears that in this instance it is possible to issue a European arrest warrant, the execution of which will then be subject to the new system created by the Framework Decision. Accordingly, if the refusal to extradite is based, for example, on the fact that the person in question is a national of the requested Member State, issuing a European arrest warrant will make it possible to overcome this obstacle, since this ground for refusal is not provided for in the Framework Decision.

In principle, the European arrest warrant procedure is applicable to surrender requests received after 1 January 2004. This date is effectively applicable in the Member States which had transposed the Framework Decision into their law by that date. It is a later date in the other Member States (see the table below). In addition, the Framework Decision provides that at the time of adopting the Framework Decision, Member States may make a declaration indicating that they will continue to apply the previous extradition system to acts committed before a date which they specify, provided that the date in question is not later than 7 August 2002. Six Member States have made use of this option, but not always in the manner provided for in the Framework Decision: a) The French implementing law provided that the new system would apply to surrender requests received from 10 March 2004, but that the previous extradition system would continue to apply to requests based on acts committed before 1 November 1993.b) Italy and Austria declared that they will continue to deal with requests for surrender for acts committed before the entry into force of the FD (7/8/2002) in accordance with the previous extradition system. In addition, Italy continues to verify double criminality for acts committed prior to the Italian implementing law (i.e. committed before 14/5/2005).c) Luxembourgs implementing law states that the European arrest warrant will only apply to acts committed after 7 August 2002, irrespective of whether LUX was the issuing or executing Member State, although it had not made the necessary decl