European arrest warrant – in theory Daniel FLORE, Director General, Belgian Ministry of Justice Professor at University of Liège Invited lecturer at the Catholic University of Louvain 5 July 2016 Summer School "The EU Area of Criminal Justice"

Preamble What are we speaking about? Which tool? Surrender of a person Based on an arrest warrant for the purposes of criminal prosecution Execution of a custodial sentence Which tool? Extradition  European arrest warrant A different name or a difference in nature? 5 July 2016 Summer School "The EU Area of Criminal Justice"

Pre-existing framework All MS were parties to : European Convention on extradition of 13 December 1957 European Convention on the suppression of terrorism of 27 January 1977 5 July 2016 Summer School "The EU Area of Criminal Justice"

Pre-existing framework Formed part of the Union acquis: Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union Convention of 27 September 1996 relating to extradition between the Member States of the European Union 5 July 2016 Summer School "The EU Area of Criminal Justice"

Towards a new system European Council of Tampere - 1999 EU’s strategy for the new millenium - 2000 Programme of measures to implement the principle of mutual recognition of criminal decisions - 2000 5 July 2016 Summer School "The EU Area of Criminal Justice"

Conclusions of the Tampere European Council (15 and 16 October 1999) Point 33 Principle of mutual recognition of the judicial decisions as the cornerstone for judicial cooperation Point 35 the formal extradition procedure should be abolished among the MS in respect of persons who are fleeing from justice after having been finally sentenced extradition procedures should be speeded up in respect of persons suspected of having committed an offence 5 July 2016 Summer School "The EU Area of Criminal Justice"

European Union’s strategy for the beginning of the new millennium Recommandation n°28 consideration should be given to the long-term possibility of the creation of a single European legal area for extradition 5 July 2016 Summer School "The EU Area of Criminal Justice"

Programme of measures to implement the principle of mutual recognition of criminal decisions (2000) Seek means of establishing handing-over arrangements : based on recognition and immediate enforcement of the arrest warrant issued by the requesting judicial authority at least for the most serious offences in Article 29 of the TEU Should, inter alia, spell out : the conditions under which an arrest warrant would be a sufficient basis for the individual to be handed over by the competent requested authorities with a view to creating a single judicial area for extradition 5 July 2016 Summer School "The EU Area of Criminal Justice"

EAW : more ambition than expected The objective set for the Union to become an area of freedom, security and justice leads to: abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities makes it possible to remove the complexity and potential for delay inherent in the extradition procedures Traditional cooperation relations which have prevailed up till now between MS should be replaced by a system of free movement of judicial decisions in criminal matters (preamble 5) 5 July 2016 Summer School "The EU Area of Criminal Justice"

EAW : first concrete measure implementing the principle of MR Principle of mutual recognition of judicial decisions in criminal matters as the ‘cornerstone’ of judicial cooperation in the EU (Tampere, conclusion 33) Differences and similarities between classical judicial cooperation and MR in the EAW? Evolution or revolution? 5 July 2016 Summer School "The EU Area of Criminal Justice"

Definition and terminology EAW = judicial decision (not a request) for the purposes of conducting a criminal prosecution executing a custodial sentence or detention order Issuing authority  executing authority (not a requesting and a requested MS) Decision on the execution 5 July 2016 Summer School "The EU Area of Criminal Justice"

Scope and conditions (1) For any act (2.1.) Punishable by the law of the issuing MS by A custodial sentence or a detention order for a maximum period of at least 12 months or for sentences of at least four months, where a sentence has been passed or a detention order has been made Double criminality check  optional non execution if the act does not constitute an offence under the law of the executing MS 5 July 2016 Summer School "The EU Area of Criminal Justice"

Scope and conditions (2) For offences contained in a list of 32 offences (2.2.) punishable in the issuing MS by a custodial sentence or a detention order for a maximum period of at least three years as defined by the law of the issuing MS Without verification of the double criminality 5 July 2016 Summer School "The EU Area of Criminal Justice"

List of 32 offences Offences contained in Article 29 TEU (Amsterdam) Conclusions of the Tampere European Council Annex of the Europol convention + some specific offences as requested by the Commission 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution No exception for political offences No exception for fiscal offences (4.1.) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution No ground based on the fundamental rights or on the principle of non discrimination BUT obligation to respect fundamental rights as enshrined in Article 6 of the TEU (recalled in 1.3.) principle of non discrimination recalled in preamble 12 as a possible ground for refusal to surrender a person when there are reasons to believe, on the basis of objective elements, that the arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution No ground based on the fundamental rights or on the principle of non discrimination BUT Case law of the EUCJ – Aranyosi – Caldararu Not conceived as a ground for refusal but as an obligation to put question and ask for guarantees 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution No ground for non execution but guarantees to be given by the issuing MS Offence punishable by custodial life sentence condition issuing MS has provisions in its legal system for review of the penalty imposed, on request or at the latest after 20 years, or application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing MS 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution Mixed situation concerning the surrender of nationals For the purpose of prosecution (5.3.) No ground but a guarantee condition  the person is returned to the executing MS in order to serve there the custodial sentence passed against him For the purpose of execution (4.6.) Optional non execution With a condition  executing MS undertakes to execute the sentence Extension to the residents (or even people staying in the executing MS in case of execution of a sentence 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution Limited ground for non execution unless beforehand guarantee execution of a sentence imposed by a decision rendered in absentia – FD 2009/299/JHA  guarantee to be contained in the EAW Effective information The person was summoned in person or actually received official information by other means in due time and was informed that a decision may be handed down if he or she does not appear for the trial Mandate to a legal counsellor appointed by the person or by the State to defend him at the trial Defended effectively at the trial No contestation of the decision The person expressly stated that he does not contest the decision did not request a retrial or appeal within the applicable time frame Right to a retrial or an appeal The person will receive the decision after surrender Will be informed of his right Will be informed of the time frame to request 5 July 2016 Summer School "The EU Area of Criminal Justice"

Grounds for non execution Grounds based on the ne bis in idem principle European NBII – mandatory non execution (3.2.) Third State NBII – optional (4.5.) Extended principle Ongoing prosecution (4.2.) Decision not to prosecute or other decision which prevents further proceedings (4.3.) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Other grounds for non execution Amnesty in the executing MS, where that State had jurisdiction – mandatory (3.1.) No criminal responsibility based on the age of the person – mandatory (3.3.) criminal prosecution or punishment statute-barred according to the law of the executing MS and the acts fall within its jurisdiction – optional (4.4.) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Last but not least : place of the offence Territoriality - offences are regarded by the law of the executing MS as having been committed in whole or in part in its territory or in a place treated as such Legitimacy – reciprocity - offences have been committed outside the territory of the issuing MS and the law of the executing MS does not allow prosecution for the same offences when committed outside its territory 5 July 2016 Summer School "The EU Area of Criminal Justice"

A candidate Proportionality Much debated since the entry into force of the new system Not added to the existing grounds 5 July 2016 Summer School "The EU Area of Criminal Justice"

Procedure Competent authorities Form and transmission Internal procedure Legal remedies? Procedural rights Time limits With or without consent Surrender 5 July 2016 Summer School "The EU Area of Criminal Justice"

Competent authorities = Judicial authorities issuing judicial authority = judicial authority of the issuing MS which is competent to issue a EAW executing judicial authority = judicial authority of the executing MS which is competent to execute the EAW Subsidiary recourse to central authorities Only if necessary as a result of the organisation of the internal judicial system, Limited role administrative transmission and reception of European arrest warrants and official correspondence 5 July 2016 Summer School "The EU Area of Criminal Justice"

Form and transmission Standardised form containing all the information (8) Alert for the requested person in the Schengen Information System (SIS) An alert in the SIS shall be equivalent to a EAW (9.3.) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Internal procedure Out of scope – legal remedies In scope – procedural rights Initially Information about the content of the EAW and the possibility to consent Right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing MS Extension with the directives on the procedural rights Interpretation and translation (directive 2010/64) Information about the case and access to the documents (directive 2012/13) Access to a lawyer (directive 2013/48) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Time-limits Decision on the execution Surrender In case of consent within 10 days after consent(should) In other cases 60 days after the arrest (should) In “specific” cases + 30 days (may) Nature of the time-limit (EUCJ Lanigan) Surrender no later than 10 days after the final decision (shall) If circumstances beyond control – agreement on a new date (+ 10 days) 5 July 2016 Summer School "The EU Area of Criminal Justice"

Surrender May be postponed for serious humanitarian reasons Ex. : if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health For prosecution or execution of a sentence (for another offence) in the executing MS Other possibility : temporarily surrender 5 July 2016 Summer School "The EU Area of Criminal Justice"

A balance in theory Between judicial authorities One step procedure No automaticity but extension of the scope and limitation of the grounds of non execution Speeding up of the procedure through strict indicative time-limits Streamlined through the standardised form 5 July 2016 Summer School "The EU Area of Criminal Justice"