European Arrest Warrant Research Articles

The European Arrest Warrant in the Italian Republic

Italian veto in the EU Council reversed by Berlusconi – Italian Parliament: lack of trust in other European Union member states – Italian implementing Act: in between the Framework Decision and the Italian legal order – Case-law of the Corte di Cassazione: interpretations in conformity with the Framework Decision and with the Italian constitutional order – Some reflections on consistent interpretation, the relationship between the legislature and the judiciary, and two very recent decisions of the Corte Costituzionale

European Arrest Warrant: Advocaten voor de Wereld VZW v. Leden van de Ministerraad

Listening carefully, one might have heard the sigh of relief breathed in Brussels and other EU capitals on 3 May 2007, when the Court of Justice of the European Communities (ECJ or Court) eventually delivered its first judgment on the European arrest warrant (EAW), giving the green light to this flagship instrument of EU judicial co-operation in criminal matters. However, what came as a relief for executive-branch officials, quite likely disappointed some of Europe's judges and legislators, as well as many academics and independent observers. For them, it must have seemed as if a long, tension-filled story had come to a bitter end.

The European Arrest Warrant, Third Pillar Law and National Constitutional Resistance/Acceptance

The EAW Saga as Narrated by the Constitutional Judiciary in Poland, Germany, and the Czech Republic In European societies of the early 21st century, the judicialisation of politics and society seems to be ‘a partial aspect of societal evolution’. Politics has become deeply judicialised and the judiciary has become profoundly involved in issues which used to be the sole domain of ‘pure’ politics. Some talk of ‘the secular papacy’, ie the judiciary of the Modern West playing the role of the 12th century papacy of the Medieval Western World. Others criticise the rise of ‘juristocracy’ and the decline of popular politics. Thus, it is not surprising that the phenomenon of ‘New Constitutionalism’ started to influence the emerging constitutionalisation of the European Communities in the 1960s and 1970s. A specific regime of European ‘constitutional tolerance’ involves constitutional and methodological pluralism among the Union and its Members, including the plurality of views on what is, and whether there is any, Grundnorm of the legal system, or who is the final arbiter of European Constitutionalism. This sort of pluralism makes the domestic judicial acceptance of European doctrines a necessary condition of the proper application of EU law. Thus, it is fair to say that the principle of primacy of European law cannot be understood from the ECJ’s perspective only. Instead, the primacy of EU law is formed by both the ECJ and national high courts.

Constitutional Implications of EU Membership: A View from the Commission

This article reviews the constitutional implications of EU membership from a European Commission perspective. It first recalls the ratification procedures in both the old and the new Member States. The author identifies five different groups in this regard. A few Member States apply constitutional provisions on the ratification of international treaties. Others have recourse to a clause which refers to limitations of national sovereignty. The vast majority ratify the founding treaties or the Accession Treaty on the basis of a transfer/delegation of powers clause, or use a clause allowing the common exercise of powers. Finally, some Member States apply special constitutional procedures to bring about EU membership. Despite these theoretical differences, their impact on the actual procedure is less significant. Basically, European treaties are either ratified as other international treaties, or the required majorities in Parliament for ratification rises compared to the parliamentary majorities needed for ordinary international treaties. Sometimes, the need to hold an additional referendum arises, or special constitutional procedures need to be fulfilled. Second, the article compares the domestic rank of European law. It shows that virtually all 27 Member States accept the supremacy of Community law over national statutes. This can be deduced from the text of the integration clauses or their function. The situation is different when it comes to the relationship between Community law and national constitutional law. Here, supremacy of Community law is either rejected, accepted or put under a reserve as regards basic constitutional principles. Third, the paper lists specific constitutional clauses relating to EU matters. It shows that a number of Member States changed their constitutions to allow for voting rights for EU citizens in local elections. Furthermore, constitutional prohibitions to extradite nationals were lifted to be able to comply with the European Arrest Warrant. Moreover, bans on foreigners acquiring real property were abolished, as they were not compatible with the free movement of capital. Community rules on economic and monetary union triggered several amendments related to the independence and function of national banks. Finally, a few candidate countries modified their constitutions to align themselves with a rising corpus of ‘constitutional acquis’ relating to the independence of the judiciary. The article concludes that the European Commission does not prescribe a specific method on how a candidate should address these issues. Rather, during the negotiations, it points to certain shortcomings as they arise in the negotiation chapters. There is an obligation of result to provide for the supremacy of Community law by accession. The choice on how and when to opt for a constitutional model which is best reconcilable with the candidate’s own national tradition certainly remains in the hands of the democratically elected representatives of the candidate country itself.

Germany: The European Arrest Warrant case

Decision of the German Constitutional Court of July 18, 2005—European Arrest Warrant Act—implementation of EU framework decision—freedom from extradition—guarantee of recourse to a court

European Union: The European Arrest Warrant and the quest for constitutional coherence

On May 3, 2007, the European Court of Justice (ECJ) delivered its judgment in the European Arrest Warrant case, 1 a much-anticipated decision intended to put an end to a confl ict ignited in 2005, when the Polish Constitutional Court declared unconstitutional a new legal institution designed to replace the existing extradition procedures among member states of the European Union (EU). 2 After the Polish decision, the German Constitutional Court had also taken a position, quickly followed by the Czech and Cypriot constitutional courts. 3

Poland: The Constitutional Tribunal on the implementation of the European Arrest Warrant

Relationship between EU law and constitutional law—legal nature of EU framework decisions—limitations on pro-European interpretation of constitutional provisions—prohibition of extradition of citizens—delimitation of competences between Constitutional Court and legislature

European Arrest Warrant; Preventive Detention

European Arrest Warrant; Preventive Detention

The European Arrest Warrant: Recent Developments

Some ten days after 11 September 2001, the European Council included the proposal for a European arrest warrant in a European action plan to combat terrorism. In this article, it is proposed to recall the origins of the European arrest warrant, to point to the problems which arise and will continue to arise from the imperfections of the Third Pillar; to consider the contribution made by the European arrest warrant to the principle of legality of extradition procedures; to consider the issue of respect for fundamental human rights; and to consider the recent very important decision of the Court of Justice in Case C-303/05 Advocaten voor de Wereld v Leden van de Ministerrad.

“Without the Power of Purse or Sword”: The European Arrest Warrant and the Role of the Commission

The ‘area of freedom, security and justice’ in the EU has experienced significant developments during the Tampere programme (1999–2004). This article makes two significant points. First, European integration is possible in areas of ‘high politics’, despite all expectations. Secondly, the Commission can (though not always does) play a significant role in this process — the role of a supranational policy entrepreneur. This empirical twin‐argument reveals shortcomings of intergovernmental understanding of European integration. The article analyses the high‐profile case of the European arrest warrant, its legal and political construction, and demonstrates the significance of the Commission in the political adoption process.

Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists

This article will analyse some of the most significant developments in the human rights case-law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) in recent years. It will begin with a brief description of how the ECJ has finally started relying on the Charter of Fundamental Rights of the European Union (EU) in its judgments. The second part of this article will deal with the decision of the ECJ that the highly controversial European Arrest Warrant (EAW) does not breach the principles of legality and equality. Finally, the third part will focus on the litigation arising from the adoption of counter-terrorism measures — in particular, economic sanctions against individuals. The specific cases that this article will deal with in Sections 2 and 3 have arisen from the European Union’s measures against crime and terrorism, and have been chosen to be the focus of this article because of the highly sensitive nature and the complex institutional framework of this area of activity of the Union, the most rapidly changing one at present.

‘Surrendering’ the Fugitive—The European Arrest Warrant and the United Kingdom

This article explains how the European Arrest Warrant forms part of the response to the modern needs of the European Union in dealing with transnational crime and considers the experience of the UK in implementing and using the warrant. The warrant is the first manifestation of the EU policy of mutual recognition in relation to cooperation in criminal matters and in questioning how effectively the UK has put the warrant into operation under the Extradition Act 2003, the article compares the analyses of the European Commission, Eurojust and the House of Lords. Finally, the approach to interpretation taken by the courts to cases coming before them concerning the warrant under the 2003 Act is examined.

Creating an Area of Criminal Justice in the EU: Putting Principles into Practice

For the year 2006, ERA again successfully applied for funding under the European Commission’s AGiS programme to carry out training activities for legal practitioners in the field of criminal justice cooperation. in this issue of ERA-Forum, we report both on the seminar of 17–19 May 2006 concerning Joint Investigation Teams: the Fight Against Serious Cross-Border Organised Crime and Terrorism (JLS /2005 /AGIS /167) and on the seminar of 23–25 october 2006 Mutual Recognition of Judicial Decisions in Criminal Matters: The Role of the National Judge (JLS /2005 /AGIS /164). the former seminar offered police officers, prosecutors and judges the opportunity to examine the law and practice in the EU relating to the Joint investigation team (‘Jit’). the Jit was devised as an instrument for pooling investigative resources of law enforcement authorities of the Member States in cross-border cases, where appropriate in cooperation with Europol and Eurojust. the october 2006 seminar was framed as ERA’s ‘First Judicial Forum on Mutual Recognition’: it was intended as the first in a series of annual events designed to enable judges and prosecutors to meet and discuss, on a European level, the practical application of mutual recognition instruments, in particular the European Arrest Warrant.

The European Arrest Warrant: a growing success story*

The Framework Decision on the European Arrest Warrant is the first instrument applying the principle of mutual recognition. It is currently subject to a second evaluation by the European Commission. This article reviews some of the issues which will be addressed in the second report, including concerns identified in relation to the surrender of nationals and the implementation of grounds for refusal.

The Fourth Round of Mutual Evaluation Carried out by the Council of the European Union of the Practical Application of the European Arrest Warrant*

Significant attention has been devoted at European level to evaluation as a crucial step in the development of mutual recognition and mutual trust in the field of criminal justice. This article takes a pragmatic approach to the theme of evaluation with the aim of giving practitioners an idea of what an evaluation procedure implies from the point of view of the evaluators. It deals with evaluation mechanisms established in the framework of the European Union, in particular with those carried out by the Council of the European Union.

The European Arrest Warrant: Between Trust, Democracy and the Rule of Law: The Implementation of the European Arrest Warrant in England and Wales

Review of the implementation of the European Arrest Warrant in England and Wales – Introduction to the Extradition Act 2003 – The European Arrest Warrant in practice – Assessing the Extradition Act 2003.

The European Arrest Warrant: Between Trust, Democracy and the Rule of Law: Introduction. The European Arrest Warrant: Extradition in Transition

The Framework Decision to establish the European Arrest Warrant (EAW) entered into force on 1 January 2004. Since the adoption of the Italian law on 22 April 2005 transposing the Decision, it has been operational throughout the European Union. In its evaluation report of January 2006, the European Commission welcomes the arrest warrant as an ‘overall success’, as it provides for an effective and swift surrender procedure whilst guaranteeing judicial control and the observation of fundamental rights. National evaluation reports, such as the 30th report of the House of Lords Select Committee on the European Union, show that the arrest warrant is widely used to secure the arrest and surrender across the Union. The European Arrest Warrant seems to have largely taken over traditional extradition procedures.

The Perils of the ‘Europeanisation’ of Extradition Procedures in the EU Mutuality, Fundamental Rights and Constitutional Guarantees

This article focuses on the main problems regarding the current application of EU extradition procedures in relation to the area of judicial cooperation in criminal matters. It introduces the ‘Europeanisation’ of extradition procedures through a discussion based on the continuity of the principle of mutual recognition from the EC Treaties to the EU Constitutional Treaty. The latest manifestation of this continuity is the introduction of the European Arrest Warrant (adopted on 13 June 2002) that is aimed at simplifying the extradition procedures for suspected criminals within the territory of the European Union by creating a positive list of criminal areas. The author discusses the innovations introduced by the Framework Decision on the European Arrest Warrant (abolition of the test of dual criminality) and then focuses on two main problem areas based on the reaction of certain Member States: i) the compatibility with constitutional guarantees, where the author focuses on the eagerness of the national courts to contest the constitutionality of the EU Arrest Warrant implementation laws for authorising the extradition of their own nationals; ii) the compatibility with Human Rights, where the author argues that the principle of mutual recognition is not adequate for adjudicating interstate criminal cases when it operates in isolation. The article then focuses upon the balance between procedural efficiency and civil liberties and proposes certain procedural and institutional checks that would assist in moving from the current embryonic stage of EU criminal law to its adolescence.

Mutual recognition of judicial decisions in criminal matters and the role of the national judge*

On 23–25 October 2006, ERA organised a conference on the principle of mutual recognition, and in particular on its legal implications for national judges. Based on the results of that conference, this article presents an overview of this form of cooperation in criminal matters from a legislative and a jurisprudential perspective. Firstly, it analyses the principle of mutual recognition in a broader context (internal market; judicial cooperation in civil matters) in order to better understand its contours. We also address the question whether this principle is as ‘revolutionary’ as many proclaim it to be. Secondly, (the progress of and obstacles to) the legislative programme of mutual recognition are discussed. Finally, after an excursus on a few key issues connected to the European Arrest Warrant, the article deals with the development of the above-mentioned principle and other aspects of criminal law in the case law of the European Court of Justice.

Lessons of the European Arrest Warrant for Domestic Implementation of the Obligation to Surrender Nationals to the International Criminal Court

To help states parties circumvent domestic prohibitions on, inter alia, the extradition of nationals, the ICC Statute formally distinguishes ‘surrender’ of individuals to the Court from interstate ‘extradition’. The European Arrest Warrant contains a similar solution. As (successful) constitutional challenges by nationals to be surrendered under a European arrest warrant indicate, such a (semantic) distinction may not suffice. Despite considerable differences between surrender within the EU and to the ICC, these cases offer useful guidance to domestic legislatures occupied with implementing obligations arising under the ICC Statute so that they can ensure that ICC requests concerning the surrender of nationals can be honoured.