European Arrest Warrant Research Articles

A right to rehabilitation through transfer or a right to not be transferred? Identifying potential beneficiaries through nationality and residence

Within the EU, two Framework Decisions have been adopted to increase the chances of social rehabilitation of sentenced persons through the transfer of the enforcement of sentences to another Member State. The older Framework Decision on the European Arrest Warrant contains some mechanisms to strengthen the social rehabilitation of sentenced persons as well. First, this article examines who can benefit from these possibilities and highlights the importance of residence and EU nationality. It further explores whether these persons have an enforceable right to rehabilitation or a right to transfer for the purpose of rehabilitation. Even though this does not seem to be the case, they do have a right not to be transferred if the transfer does not facilitate rehabilitation. However, this right proves particularly difficult to enforce, especially given the possibility for states to expel foreigners. This paper claims that without further limitations on expulsions by states, or without giving more rights to sentenced persons under Framework Decision 2008/909/JHA, states might rather easily be able to circumvent the main objective of that Framework Decision.

Intersections among EU judicial cooperation instruments and the quest for an advanced and consistent European judicial space: The case of the transfer and surrender of convicts in the EU

The article addresses the intersections among the three EU instruments regulating cross-border surrender and transfer of convicts in the Union, namely, Framework Decisions 2002/584/JHA on the European Arrest Warrant, 2008/909/JHA on the transfer of prisoners and 2008/947/JHA on the supervision of probation measures and alternative sanctions abroad. The analysis identified three main categories of intersections and discusses several critical examples: normative interplays, teleological connections and interplays deriving from the need to secure the protection of fundamental rights. The article supports the view that, while the development of judicial cooperation in criminal matters has extensively relied on an ad hoc approach to mutual recognition, the analysis of the interplays among different EU measures enhances the pathway towards an increasingly forward-looking truly EU judicial space. To this purpose, the analysis advocates for further research from this largely neglected perspective, beyond the case of the surrender and transfer of convicts.

The European Arrest Warrant in a context of distrust: Is the Court taking rights seriously?

AbstractDuring a time of distrust towards some Member States, the position of fundamental rights when executing a European Arrest Warrant (EAW) has been strengthened. The article considers whether the European Court of Justice (ECJ) is now ‘taking rights seriously’ as regards the EAW. To this end, it employs a theoretical and contextual approach that supports a comprehensive analysis of case‐law. First, the article borrows from a theory of rights as trumps and observes that rights are no longer treated as norms with no special force that are in the way of cooperation interests. Second, the article offers a contextual exegesis of this trajectory, by mapping drivers of distrust and evaluating their impact on the position of rights. Through contextualisation, it is argued that distrust, although limited by its circumstances, has offered a compelling opportunity for the ECJ to take rights seriously, paving the way forward for future case‐law.

The ‘licence to distrust’ and the protection of individual rights in the execution of a European Arrest Warrant: A comment

AbstractThis comment on Ermioni Xanthopoulou's insightful article starts by revisiting the nature and role of trust in the European Arrest Warrant (EAW) procedure, considering the recent developments in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) (from Aranyosi/Căldăraru to Bivolaru/Moldovan). It is argued that trust is distinct from the presumption of respect for fundamental rights that underlies mutual recognition. The exercise of trust is now monitored by those Courts, as a means of protecting individual rights. This rehabilitates the proper meaning of trust, which can be reinforced by assurances. Prison conditions and legal changes affecting the rule of law are analysed in this light, as ‘drivers of distrust’. In sum, distrust can legitimately provide immediate protection for the individual, and the spectre of distrust causes the appreciation of trust, which in turn is beneficial for fundamental rights.

A Next Level Model for the European Arrest Warrant

A Next Level Model for the European Arrest Warrant

The Surrender of Fugitive Offenders between Mainland China and Hong Kong: European Arrest Warrant Model or US Interstate Rendition Model?

Under the ‘one country, two systems’ policy, the surrender of fugitive offenders between Mainland China and Hong Kong has been debated. This article will frame the debate on the application of traditional extradition rules in Mainland China and Hong Kong by exploring the more recent ‘European Arrest Warrant’ system and the long-standing US interstate rendition system. It thus aims to find a suitable model for Mainland China and Hong Kong. The US interstate rendition system is one domestic system, which seems most appropriate for application to Mainland China and Hong Kong as two regions of the same country. However, this article finds that the US interstate rendition system is too direct and inflexible to be enacted by Mainland China and Hong Kong where the legal situation is more complicated and human rights protection differs. This article argues that the European Arrest Warrant can better address the ‘one country, two systems’ situation of Mainland China and Hong Kong. Mainland China and Hong Kong can learn from the European Arrest Warrant to apply the ‘mutual recognition principle’ and other concrete extradition principles to their own surrender system.

ECHR Preamble vs. the European Arrest Warrant: balancing Human Rights protection and the principle of mutual trust in EU Criminal Law?

As stated in the European Convention on Hu- man Rights Preamble, the aim of the Council of Europe is the achievement of greater unity between its members through the maintenance and realisation of Human Rights and Fundamental Freedoms . Nowadays, the European Union includes the majority of the ECHR signatories (27 of 47) and incorporates the key legal instrument of judicial cooperation in criminal matters, namely the European Arrest Warrant Framework Decision . Nevertheless, the possible effects of the EAWFD on the practice of the European Court of Human Rights remain understudied – despite the crucial need to properly balance the enforcement of the principle of mutual recognition and Human Rights protection in the European Union. Since the first attempts to approach the EAWFD, the Strasbourg Court preferred to find the applications inadmissible (Pianese, Monedero Angora, Stapleton) or to establish a very high threshold for establishing a Convention violation within this context (Pirozzi). It will be argued that the newly developing Strasbourg Court’s case-law on the EAWFD (Castano, Bivolaru/Moldovan, Alosa) could potentially mark a new step in the judicial dialogue be- tween two European Courts. In the Castano and Bivolaru/ Moldovan rulings, the ECtHR – for the first time – found that the EU Member States had breached their obligations under Arts . 2 ( ́right to life ́) and 3 ( ́prohibition of torture ́) ECHR within the European Arrest Warrant context (murder/traffick- ing in human beings charges). At the same time, this interpre- tation opens the floor for discussion on potential applicability of other Convention provisions (Arts . 4, 5, 8, 13) to other offences listed in Art . 2(2) of the EAWFD (such as, for instance, corruption, fraud, computer-related crime etc .). Even though the Strasbourg Court has transposed the CJEU’s benchmarks of the EAW refusals legality assessment – i .e . a risk of inhuman or degrading treatment in the requesting State (Aranyosi/Căldăra­ ru), the EU Member States ́ courts are now forced – de facto – to consider an additional (ECHR-based) criterion for assessing the legality of refusals to execute the European Arrest Warrants. This can arguably pose further questions upon the entry into force of Protocol No. 15 ECHR which aims at the most effective realisation of the ́subsidiarity ́ principle in the European Convention system.

CJEU: Germany’s Public Prosecution Authorities Cannot be Regarded as a “Judicial Authority” with Regard to EAWs—The Truth or a Misconstrual of the Legal Reality?

AbstractThe judgment rendered by the Court of Justice of the European Union (CJEU) on May 27, 2019, deemed Germany’s prosecution service (Staatsanwaltschaft) legally incompetent for the purpose of issuing European arrest warrants (EAW) due to its lack of institutional independence. As a consequence, the question of how the German criminal prosecution system differs from the approaches taken by other European countries issuing European arrest warrants arises and raises the question of whether the German prosecution service truly is insufficiently independent in this respect. Debates amongst legal scholars have ensued in the wake of the CJEU’s judgment—the Court not yet having proffered any solutions regarding the re-establishment of the institutional independence—and this article shall discuss the lack of independence and acquaint the reader with possible solutions.

Primena Evropskog naloga za hapšenje

The paper analyses the European Arrest Warrant which is based on the principle of mutual recognition and the principle of effective cooperation, which represent the foundations of judicial cooperation in criminal legal matters. The authors analyse whether there are obstacles to mutual recognition of decisions and how effective cooperation is when it comes to the European Arrest Warrant. The paper includes the conducted research regarding appeals against the European Arrest Warrant addressed to the Supreme Court and the High Criminal Court of the Republic of Croatia. The aim is to use a random sample to determine which criminal offenses are most often the subject of the European Arrest Warrant, as well as the number of rejections or acceptance of appeals against the European Arrest Warrant. In particular, by using the case study method, cases were analysed in which the appeal was accepted, i.e., to determine the shortcomings of the first instance courts in making decisions. According to the available data, an analysis was performed on the number of issued and executed warrants for individual countries from 2014 to 2018, which shows the functionality of the implementation.

Detention Conditions in the Issuing Member State as a Ground for Non-Execution of the European Arrest Warrant: State of Play and Challenges Ahead

In its Aranyosi and Căldăraru judgment, the Court of Justice of the EU (CJEU) recognized explicitly for the first time the possibility for executing judicial authorities to deny the execution of European Arrest Warrants (EAWs) when there is a risk of breach of the requested person’s fundamental rights in the issuing Member State, more specifically, a risk relating to inhuman or degrading treatment because of the detention conditions. Two subsequent CJEU judgments brought complementary clarifications in this respect. These decisions have been welcomed as they have helped define the limits of the principle of mutual trust and finding a fair balance between the effectiveness of judicial cooperation in criminal matters and the protection of fundamental rights. However, they have also posed crucial challenges in EAW proceedings. Indeed, the CJEU’s Aranyosi and Căldăraru case-law raised for instance concerns as to the exact scope of this new ground for non-execution of EAWs and the risk of variable geometry in its implementation because of the wide margin of manoeuvre left to the competent national authorities. This article highlights those and other challenges and investigates whether there is a need for further EU action in the field. It defends the view that various EU interventions of a non-legislative nature are necessary but it calls also for a reflection on EU legislative actions, especially defining minimum standards in the field of detention conditions.

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

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.​

Compensation for Unjustified Detention and the European Arrest Warrant

Compensation for Unjustified Detention and the European Arrest Warrant

The Transposition into National Law of the Margin of Discretion in the Grounds for Optional Non-execution of the European Arrest Warrant – A Danish Example

In this article, I analyse and discuss the demands of the Court of Justice of the EU to the transposition into domestic law of the grounds for optional non-execution in Articles 4 and 4a of Council Framework Decision 2002/584 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). In the Danish Extradition Act, three of the grounds for optional non-execution have been transposed as mandatory, i.e., if the conditions as described in these provisions apply, execution of the European arrest warrant must be refused. Based on the case-law of the Court of Justice of the EU, I argue that this transposition runs counter to the purpose of 2002/584/JHA, since it denies the national judicial authorities a margin of discretion when deciding on whether or not to surrender a requested person, the only possible exception being the transposition of the rule of dual criminality, which is framed differently from the other grounds for non-execution in Article 4.

Concerns Regarding the Rule of Law as a Ground for Non-execution of the European Arrest Warrant: Suggestions for a Reform

The judicial reforms in Poland, which are harshly and continuously criticised as undermining the independence of Polish courts, have brought the principle of mutual recognition and the European arrest warrant (EAW) to its limits. These unprecedented challenges to the rule of law have made it necessary to create an extraordinary ground for non-execution of EAWs issued by Polish authorities. However, the pertinent jurisprudence of the Court of Justice in Luxemburg (case C-216/18 PPU and follow-up decisions) is not fully convincing, particularly in the light of two recent judgments by the Polish Constitutional Tribunal. For that reason, a more far-reaching legislative reform of the EAW is urgently needed.

Fulfillment of the Conditions of Law no. 302/2004 on the European Arrest Warrant

In the Romanian and European doctrine, taking into account the definition given by the European legislator in the normative act itself, the Framework “Decision no. 2002/584/JHA, the European arrest warrant was defined in a similar manner as the legislator did”. Thus, one jurisprudential decision states that: “from a legal point of view, the European arrest warrant is defined as a court decision issued by the competent judicial authority of an EU Member State, in order for another state to arrest and hand over a person who is wanted in order to stand for prosecution, trial or the execution of a custodial sentence or a security measure” (European Court of Justice, 2016).

The Preconditions for the Admission of the Preventive Measure Based on an European Arrest Warrant

In addition to the mandatory “grounds for refusing to execute an European arrest warrant, the legislator” also provided for some optional grounds on the basis of which the competent judicial bodies “of the executing Member State may refuse to execute an European arrest warrant”. These provisions give the courts of the executing Member State the right to invoke or not to invoke them and, implicitly, the right to execute or not to execute an European arrest warrant. In our view, the refusal to execute the warrant must be complemented by the establishment “of direct links between the judicial authorities of the two Member States”, with regard to adopting a solution to the situation. In this context, given the complexity of the cases, the specific circumstances of the crimes, as well as other elements, the two judicial authorities involved will have to ascertain the incidence of another European institution, namely the transfer of proceedings in criminal matters.

Trust Thy Neighbour? Compliance and Proximity to the EU through the Lens of Extradition

Abstract The principle of mutual trust between Member States is key to the functioning of European Union (EU) law. Rooted in sincere cooperation and equality of the Union’s States, that principle is premised on compliance with shared values, interests, and rules. This fosters close cooperation in many areas, such as law enforcement, as exemplified by the European Arrest Warrant Framework Decision (EAW FD). Outside the Union, the presumption is that the principle of mutual trust does not apply. This seems confirmed by the case law on the extradition of EU citizens, with the EU Court of Justice (ECJ) prioritizing intra-EU cooperation over forced transfer of Union nationals to the requesting third countries. As the EU has developed a sophisticated network of relationships with its partners, and neighbours especially, the question arises as to when, if at all, third countries can be trusted, and when that trust can be challenged. By using the benchmark of EU membership as the standard of legal proximity, this article analyses the EU’s relationship with some of its neighbours in cases of extradition. The article creates an analytical framework to tackle unanswered questions around mutual trust and cooperation in criminal matters, and to read into the future of the legal relationship between the EU and some third countries.

International cooperation in conducting procedural actions during the pre-trial investigation in the countries of the European Union and perspectives of its use in Ukraine

The article analyzes some areas of cooperation between law enforcement agencies of the European Union in the field of pre-trial investigation. Particular attention is paid to the European Arrest Warrant and its application. Ukraine aspiring to become a member of the EU must take into account all issues related to the issuance and execution of these warrants. Particular attention is paid to the analysis of more specific problems related to criminal-executive criteria for the perception of life imprisonment as subspecies of imprisonment for a certain period; systemic content ratio of general penitentiary norms, which determine the legal status of convicts sentenced to life imprisonment, and special ones, which should reproduce peculiarities of regime requirements of penitentiary institutions of different security levels (in particular, medium and maximum). It is proved that clarity, completeness and system-legal balance will be facilitated by the formal reproduction in the law of classification of all criminal-executive norms of Chapter 22 of the Criminal Executive Code (hereinafter–CEC) (based on a certain criterion) into norms of general and special significance, which in turn should be divided into the following subtypes. Moreover, the EU countries do not yet have the appropriate practice in the application of these warrants.

Are Alternatives to the European Arrest Warrant Underused? The Case for an Integrative Approach to Judicial Cooperation Mechanisms in the EU Criminal Justice Area

Are Alternatives to the European Arrest Warrant Underused? The Case for an Integrative Approach to Judicial Cooperation Mechanisms in the EU Criminal Justice Area

The Fog of Identity and Judicial Contestation: Preventive and Defensive Constitutional Identity Review in Germany

This article deals with constitutional identity review by the German Federal Constitutional Court (FCC). While identity review is often discussed merely as an instrument of judicial contestation by which the FCC challenges the European Court of Justice and its stance on the primacy of EU law, this article shows that both the aim and the effect of identity review go far beyond judicial conflict. In fact, identity review produces significant preventive and deterrent effects on (national) EU policies, which come into play well before any judicial conflict. By means of preventive identity review, the FCC has created a fog of identity, a dark field of potential unconstitutionality, which considerably limits the scope of policy choices in advance and even irrespective of whether or not these policies would ultimately be judged to be unconstitutional. As for the defensive dimension of identity review, the article addresses the complexity of the (too often simplified) conceptual relationship of identity review to other modes of review such as ultra vires review and the Solange case law. It shows that identity review has gradually become the conceptual heart of the FCC’s defensive triad. Identity review, constitutional identity, fog of identity, German Federal Constitutional Court, preventive and defensive identity review, eternity clause, principle of democracy, NGEU, European Arrest Warrant III, PSPP, Unified Patent Court, Right to be forgotten I and II, Banking Union, Egenberger