The European Arrest Warrant (EAW) is a valid arrest warrant that applies to all member states within the European Union (EU). When issued, it mandates another member state to apprehend and transfer a criminal suspect or an individual serving a sentence to the issuing state, allowing them to face trial or complete their detention period. This system simplifies cross-border judicial surrenders and replaces the previously complex extradition procedures among member states. The EAW has been in effect across all Member States since January 1, 2004.
An EAW issued by one Member State holds authority throughout the entire EU territory, based on the principle of mutual recognition. It can only be issued for the purposes of conducting a criminal prosecution (rather than a mere investigation) or enforcing a custodial sentence. Furthermore, it can only be issued for offenses carrying a minimum penalty of one year or more in prison. If a sentence has already been imposed, an EAW can only be issued if the prison term to be served is at least four months.
Given the significant consequences associated with an EAW, it should always align with its intended purpose. This implies that the issuing judicial authority must conduct a proportionality assessment before deciding to issue an EAW. This assessment involves considering various factors to determine the justification for issuing the warrant.
Despite its contribution to combating organized crime, the EAW system is considered “highly controversial” due to its potential for abuse. It raises concerns related to constitutional law and has garnered criticism from human rights organizations. They have expressed worries about the incarceration of innocent individuals, the disproportionate nature of EAWs, and violations of procedural rights.
The European Arrest Warrant, often referred to as the “EAW,” represents a streamlined cross-border judicial surrender process designed for the purpose of prosecution or the execution of custodial sentences or detention orders.
Since January 1, 2004, the Framework Decision on the EAW has been in effect across all Member States of the European Union. This framework has effectively replaced the previously protracted extradition procedures that existed among EU Member States.
The primary objective of the EAW is to prevent the exploitation of open borders and free movement within the Union by individuals attempting to evade legal accountability. It stands as the most successful instrument for enhancing judicial cooperation in criminal matters within the Union.
As illustrative examples, the EAW has been employed in various significant cases, including:
– Apprehending a terrorist involved in the Paris attacks, who was captured in Belgium.
– Arresting an assailant responsible for an attack at the Brussels Jewish Museum in France.
– Tracking down a failed London bomber in Italy.
– Locating and capturing a German serial killer in Spain.
– Surrendering a suspected drug smuggler from Malta by the UK.
– Pursuing a gang of armed robbers sought by Italy, leading to the arrest of its members in six different EU countries.
An EAW issued by the judicial authority of one EU member country holds validity across the entire EU territory. This mechanism functions on the basis of mutual recognition, facilitating direct communication and coordination between judicial authorities.
An EAW can be issued by a national judicial authority for either of the following purposes:
1. Prosecuting an individual when the offense they are accused of is subject to a custodial sentence or detention order, punishable under the laws of the issuing Member State with a maximum duration of at least 12 months.
OR
2. Enforcing a custodial sentence or detention order when the imposed sentence is for a minimum period of at least 4 months.
One of the primary merits of the European Arrest Warrant (EAW) lies in its rigorous time constraints. This feature enables expeditious procedures and prevents individuals from being held in custody for excessive periods while awaiting a surrender decision. In cases where the requested person consents to their surrender, the country of arrest must reach a final decision on executing the EAW within 10 days. Otherwise, if consent is not given, the final decision should be made within 60 days following the arrest of the requested person. The surrender of the requested person must occur as expeditiously as possible, on a mutually agreed-upon date, and no later than 10 days after the final decision regarding the execution of the EAW.
Another notable advantage of the EAW, compared to extradition proceedings, is the absence of a requirement to verify whether the act constitutes a criminal offense in both countries for 32 specific offense categories. The sole condition is that the offense must carry a maximum penalty of at least 3 years of imprisonment in the issuing Member State. For other offenses, surrender may be contingent upon the act for which the EAW has been issued also constituting an offense in the executing Member State.
Decisions regarding the EAW are exclusively made by judicial authorities, devoid of any political considerations. The executive branch is prohibited from interfering with the determinations of the judicial authority. This judicial process also safeguards the rights of the person sought.
EU member countries are no longer permitted to refuse the surrender of their own nationals, unless the executing state commits to executing the sentence or detention order in accordance with its domestic laws.
The country executing the EAW may request assurances that:
a. If the offense leading to the issuance of the EAW is punishable by a life sentence or life-time detention order, the requested person will retain the right to seek review after a specific duration.
b. The requested person, whether a national or resident of the executing state, will be returned to that state to serve the custodial sentence or detention order imposed in the issuing Member State.
The executing judicial authority possesses the authority to decline the execution of the European Arrest Warrant (EAW) solely in the event that one of the compulsory or discretionary grounds for refusal is applicable.
Compulsory Grounds
1. The offense is subject to amnesty (meaning the executing country could have prosecuted, but the offense is now protected by an amnesty in that country).
2. The individual has already been tried for the same offense (known as “ne bis in idem”).
3. The individual is a minor and has not reached the age of criminal responsibility in the executing country.
Discretionary Grounds, when adopted by Member States, include
1. Lack of double criminality for offenses other than the 32 specified in the Framework Decision on EAW.
2. There is an ongoing criminal proceeding in the executing country for the same acts.
3. The statute of limitations is applicable.
4. The individual has been tried in absentia without adhering to specific conditions.
Double criminality is a principle within international extradition law that enables states to decline the extradition of individuals if the actions alleged to constitute a criminal offense in the requesting state would not have amounted to a criminal offense in the state from which extradition is sought.
In the context of the EAW Framework Decision, the necessity for double criminality is eliminated for numerous categories of crimes. Instead, it is transformed into a discretionary rather than an obligatory basis for rejecting extradition requests for offenses that do not fall within those specified categories.
The categories within which are as follows:
The Framework Decision does not explicitly address whether secondary involvement in, or an attempt to commit, an offense falling within the listed categories automatically exempts it from the correspondence requirement.
Another matter of concern is the precision of designating an offense as belonging to a category exempt from the correspondence requirement. There is also a question regarding whether the executing judicial authority is obligated to accept the issuing judicial authority’s classification as definitive.
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