1. 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"

2. 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"

3. 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"

4. 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"

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

6. 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"

7. 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"

8. 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"

9. 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"

10. 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"

11. 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"

12. 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"

13. 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"

14. 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"

15. 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"

16. 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"

17. 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"

18. 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"

19. 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"

20. 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"

21. 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"

22. 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"

23. 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"

24. 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"

25. 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"

26. 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"

27. 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"

28. 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"

29. 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"

30. 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"

31. 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"