The European Arrest Warrant, from Mutual Recognition to Mutual Supervision?

Abstract

Mutual recognition is the rule which guides cooperation in criminal matters within the European Union. Whilst intended to facilitate and make cooperation faster, the Court of Justice has done exactly the opposite in its case law. It has raised the thresholds for cooperation between the Member States by creating more formalities, causing delay and it does so without strengthening effective legal remedies for the citizen. Member States must assess detention circumstances elsewhere, the status of the issuing judicial authority, as well as make an assessment of the judicial independence of the judiciary of the issuing Member State. These three cumulative developments have led to a situation in which Member States mutually supervise each other. The concept of dual level of protection, as introduced by the Court, triggers two procedures that will be necessary: one, in the issuing Member State, before the European Arrest Warrant (EAW) is issued, and another in the executing Member State when it must be executed. However, the requested person does not benefit from effective judicial protection because of their absence when the EAW is issued. This would only be the case when it would be possible for the requested person to challenge the need for the EAW in the context of the existence of alternatives to surrender that might be less violative of the freedoms and rights of the requested person. Such an overall assessment of the legal position of the requested person would require a single joint level of protection, involving both Member States and the requested person in one procedure in order to safeguard that all interests at stake are considered, impunity is prevented and thus a fair administration of justice is ensured.​