HOW EFFECTIVE IS THE EUROPEAN ARREST WARRANT AS A MEANS OF COMBATING TRANSNATIONAL CRIME? Daniel BERNARD Federal Prosecutor of Belgium CICERO FOUNDATION SEMINAR PARIS, 11 DECEMBER 2006 28/02/2019 Cicero Foundation - International Seminar for Experts

European instruments adopted in the frame of the principle of MUTUAL RECOGNITION within the European Union « cornerstone » of judicial co-operation (Tampere,1998) Instruments adopted and implemented : 1. Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, 29th May 2000  JOINT INVESTIGATION TEAMS 2. FWD on the EUROPEAN ARREST WARRANT 13.06.20 (25 MS) 3. FWD on the FREEZING ORDERS 22.07.2003 (14 MS) In project : FWD on the EUROPEAN EVIDENCE WARRANT FWD on the CONFISCATION ORDERS 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts ACTORS involved in judicial co-operation concerning the fight against organised crime inside the European Union On a judicial level 1. NATIONAL JUDICIAL AUTHORITIES 2. CENTRAL AUTHORITIES 3. EUROJUST 4. EUROPEAN JUDICIAL NETWORK 5. LIAISON MAGISTRATES On a police level 1. NATIONAL POLICE AUTHORITIES 2. EUROPOL 3. LIAISON OFFICERS 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT PRELIMINARIES 1. The mechanism of the EAW is based on a high level of confidence between Member States 2. Main role of the judicial authorities : the role of central authorities in the execution of a EAW is limited to practical and administrative assistance 3. The EAW should replace all the previous instruments concerning extradition in relations between EU MS 4. All the rules relating the respect of the fundamental rights are still applicable : refusal to surrender a person if  serious risk for death penalty or inhuman treatment  EAW based on discrimination 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT DEFINITION The EAW is : - a judicial decision - issued by a Member State - with a view to the arrest and the surrender by another Member State - For the purpose of :  conducting a criminal prosecution  executing a custodial sentence / detention order 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT SCOPE The EAW may be issued :  for sentences of at least 4 months  for acts punishable by the law of the issuing MB for a maximum period of at least 12 months but control of double criminality There is no control of double criminality : For 32 offences limitatively listed if they are punishable in the issuing MS for a maximum period of at least 3 years 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT THE GROUNDS FOR MANDATORY NON-EXECUTION  OFFENCE COVERED BY AMNESTY IN THE EXECUTING MS  FINAL JUDGMENT or DEFINITIVE DECISION BY A EUROPEAN MEMBER STATE IN RESPECT OF THE SAME FACTS – ne bis in idem  LEGAL MINORITY (under the law of the executing MS) AT THE MOMENT OF THE FACTS 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT THE GROUNDS FOR OPTIONAL NON-EXECUTION  Lack of double criminality (except the 32 listed offences)  Judicial proceedings for the same facts in the executing MS  Prosecution or punishment is statute-barred according the law of the executing MS  Judgement for the same facts in a non MS  The requested person is national or resident in the executing MS which undertakes to execute the sentence  Acts committed in the executing MS  Acts committed outside the issuing State and proceedings not allowed by the law of the executing State 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT GUARANTEES TO BE OBTAINED FROM THE ISSUING STATE  EAW ISSUED FOR THE PURPOSES OF EXECUTING A SENTENCE OR MEASURE IMPOSED BY A DECISION RENDERED IN ABSENTIA AGAINST A PERSON WHO WAS NOT INFORMED ABOUT THE TRIAL  MANDATORY GUARANTEE : ASSURANCE DEEMED ADEQUATE TO GUARANTEE THE PERSON THAT HE OR SHE WILL HAVE AN OPPORTUNITY TO APPLY FOR A RETRIAL OF THE CASE AND TO BE PRESENT AT THE JUDGMENT  EAW ISSUED FOR THE PURPOSES OF PROSECUTION AGAINST A NATIONAL or RESIDENT IN THE EXECUTING MS  OPTIONAL GUARANTEE : RETURN OF THE PERSON CONCERNED TO THE EXECUTING MS IN ORDER TO SERVE THE CUSTODIAL SENTENCE OR DETENTION ORDER 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT JUDICIAL AUTHORITIES AND CENTRAL AUTHORITIES The issuing judicial authority is the judicial authority of the issuing MS, competent to issue an EAW The executing judicial authority is the judicial authority of the executing MS, competent to execute a EAW Each MS may designate a central authority : - to assist the competent judicial authority - for the administrative transmission and reception 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT IMPLEMENTATION MS DATE TIME LIMIT LANGUAGE DELAY AT 01.05.2004 07.08.2002 G, F, NL 40 days BE 01.01.2004 F, NL, G, E 10 days CZ 14.01.2005 01.11.2004 DE 23.08.2004  18.07.2005 03.08.2006 CY Gr, Tk, E 03 days DK DK, SE, E 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORKDECISION ON THE EUROPEAN ARREST WARRANT IMPLEMENTATION MS DATE TIME LIMIT LANGUAGE DELAY EE 01.07.2004 Est, E 03 days EL 09.07.2004 Gr 10 days ES 01.01.2004 Es FI Fin, SE, E ASAP FR 13.03.2004 01.11.1993 F 06 days HU 01.05.2004 H 40 days IE Gaëllic, E 07 days 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORKDECISION ON THE EUROPEAN ARREST WARRANT IMPLEMENTATION MS DATE TIME LIMIT LANGUAGE DELAY IT 14.05.2005 07.08.2002 It 10 days LT 21.10.2004 Let 72 hours LU 26.03.2004 F, G, E 06 days LV 01.05.2004 Lit, E 48 hours MT 07.06.2004 Mt, E NL 12.05.2004 NL, E 20 days PL Pl 03 mths 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORKDECISION ON THE EUROPEAN ARREST WARRANT IMPLEMENTATION MS DATE TIME LIMIT LANGUAGE DELAY PT 01.01.2004 Pt 10 days SI 01.05.2004 07.08.2002 Sl 20 days SK 01.08.2004 Sk 18 days SE SE,DK,NO,E ASAP UK E 48 hours BUL ROM 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORK DECISION ON THE EUROPEAN ARREST WARRANT SURRENDER PROCEDURE TIME LIMITS: 1. for the decision to execute the EAW :  with consent : 10 days  without consent : 60 days after arrest if not : inform immediately the issuing MS + 30 days 2. for the surrender of the person :  ASAP or maximum 10 days after final decision if not : immediat contact with the issuing MS  maximum 10 days after new date 28/02/2019 Cicero Foundation - International Seminar for Experts

Cicero Foundation - International Seminar for Experts THE FRAMEWORKDECISION ON THE EUROPEAN ARREST WARRANT SURRENDER PROCEDURE POSSIBILITY TO POSTPONE THE SURRENDER 1. For serious humanitarian reasons (endanger the life of health of the person) 2. For prosecution of the person in the executing MS or, if already sentenced, for serve a sentence in the executing MS 28/02/2019 Cicero Foundation - International Seminar for Experts

THE FRAMEWORKDECISION ON THE EUROPEAN ARREST WARRANT EVALUATION DURING THE YEAR 2005 ARRESTED PERSONS : 1.526 EFFECTIVELY SURRENDERED PERSONS : 1.295 NATIONALS SURRENDED : 309 REFUSALS : 169 DELAY FOR SURRENDER : 30 à 40 DAYS 28/02/2019 Cicero Foundation - International Seminar for Experts