European Arrest Warrants

EUROJUST News Issue No. 12 - September 2014

Dear reader, in this issue I am pleased to present the twelfth issue of Eurojust News. This issue focuses on the European Arrest Warrant (EAW), the most prominent mutual recognition tool. The EAW is celebrating 10 years of exist- 1 Introduction ence, so now is a good time to consider its strengths and weaknesses, especially as the call for reform within one year has been sounded by the European Parliament. 4 History of the EAW Jan Van Gaever, a Deputy Prosecutor General in Brussels, formally introduces this newsletter with a discussion of the issues surrounding the EAW, including suggestions for its improvement and a possible 5 Eurojust and enhanced role for Eurojust. Following Mr Van Gaever’s introduction, we move on to Eurojust’s activities cooperation partners in the area, case examples highlighting the role of Eurojust and the work of Eurojust’s Judicial Coopera- Practical and legal tion Instruments Team. 10 issues The Spring Conference of the European Criminal Bar Association, held in Warsaw on 25-26 April, was entitled Legal aid – privilege for criminals or essential for fair proceedings?. A forum such as this 10 ECBA Spring Conference provides an opportunity for practitioners and experts, including Eurojust, to exchange information on topics that are relevant for the EU criminal justice area. 12 Interviews with Baroness Ludford, Eurojust hosted a strategic seminar in June, entitled The European Arrest Warrant: Which way for- Professor Weyembergh, ward?, in which leading figures in Europe’s legislative sphere gave presentations that provided valuable Professor Mitsilegas discussion points and background, and held workshops on a range of highly relevant topics. Professor and Judge Bay Larsen Anne Weyembergh gave the keynote speech at the seminar, and we were fortunate that she could spare the time to provide Eurojust News with an interview.

Baroness Sarah Ludford, a former Liberal Democrat MEP from the UK, gave a keynote speech at the meeting of the Consultative Forum on the future of the European Arrest Warrant. Baroness Ludford was also kind enough to provide an enlightening interview for this issue of Eurojust News. Professor Val- samis Mitsilegas of University College London provides his perspective of the first ten years of the EAW. Judge Lars Bay Larsen of the Court of Justice of the European Union (ECJ) shares his thoughts on the development of the EAW, the protection of fundamental human rights, and cases before the ECJ.

If you have any comments concerning this issue of Eurojust News, please contact our Press & PR Ser- vice at [email protected].

Michèle Coninsx, President of Eurojust © shutterstock

European Arrest Warrant 12 Introduction

an Van Gaever is Deputy Prosecutor houdingsbevel in de praktijk) and is guest General in Brussels, with responsibility professor for Belgian judicial trainees and Jfor, among other things, international for national and international magistrates. EUROJUST Maanweg 174 cooperation in criminal matters. Mr Van Mr Van Gaever is also a member of the edi- NL - 2516 AB The Hague Gaever is the author of various works on torial board of the Tijdschrift voor Stafrecht criminal law, criminal procedural law and (Journal of Criminal Law). Tel: +31 70 412 5000 international cooperation in criminal mat- Fax: +31 70 412 5005 ters (including a book on the European Ar- Mr Van Gaever kindly agreed to provide an [email protected] rest Warrant in practice, Het Europees aan- introduction to the EAW for Eurojust News. www.eurojust.europa.eu

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Mutual recognition is the cornerstone of the EAW Framework Decision. Mutual recognition implies mutual trust

With regard to the Nordic Arrest War- consider the merits of the accusation. It rant (NAW), we cannot exclude the pos- might be convenient to call to mind an sibility that this system might inspire old but still valid rule applicable in extradition proceedings, namely the Non- the EAW system, although one should Inquiry Rule. To paraphrase an Ameri- keepand influencein mind that further the Commission developments Pro of- can judge, the Non-Inquiry Rule is the posal for the EAW Framework Decision, well-established rule that extradition entailing a system much closer to the proceedings are not to be converted NAW, did not survive the debate stage. into a dress rehearsal trial. Comparison and cross-pollination be- Belgian law prohibits surrender in the and should be carefully assessed. The event of a possible infringement of fun- leveltween of the approximation EAW and the NAWof legal is difficult norms damental rights. Although such infringe- and mutual trust between the Nordic ment is quite often invoked by defence States is more developed than within counsel in order to have surrender re- the European Union. To quote Profes- fused, these allegations are seldom ac- sor Anne Weyembergh, “When it comes cepted, especially because many of the to the abolition of the specialty principle arguments invoked bear no relation Mr Jan Van Gaever the question arises as to whether the at- whatsoever to fundamental rights. Ac- tained level of trust in the EU area is ma- cording to the established jurisprudence ‘We have been celebrating the 10th an- ture enough for such a move” (even after of the Belgian Supreme Court, courts niversary of the entry into force of the 10 years of application of the EAW). evaluate indisputably if there is a real Council Framework Decision on the Eu- and personal risk of infringement of the ropean Arrest Warrant. This might be a Instead of seeing Europe’s cultural di- requested person’s fundamental rights good time to evaluate what we have and versity as an obstacle to harmonisation, and assess if the factual background al- what we lack when considering where we we should use this to our advantage. lows the assumption of respect for these want to go. During this decade, numer- If the Commission (or Eurojust) could rights in the issuing State to be refuted. ous assessments have been carried out, lead the way to the creation of a trilin- The courts do not have to assess the level especially at EU level, safeguarding the gual European database on jurispru- of respect for fundamental rights in the advantages of the new system of surren- issuing State as they themselves are not der and resolving dysfunctions or trying important topics of the EAW system, competent to supervise the entire foreign to (e.g. the different level of implementa- dence related in a first stage to the most procedure from the moment of initiating tion in the Member States). According to other countries in trying to resolve the the proceedings to the execution of the the Commission, consolidation is the key mostwe could criticised benefit issues, from the such experience as the use of sentence. They only have to ensure that word for the coming years. Neverthe- of grounds for refusal, the use of legal there are no serious reasons for believ- less, as already indicated by, inter alia, remedies or fundamental rights. This ing that the execution of the EAW would the Commission, there is still room for might also allow a better mechanism lead to such an infringement. In general, improvement. This is certainly not an for advising on how to interpret dispo- Belgian jurisprudence has since 2004 sitions of the EAW Framework Decision evolved to a (further) restriction on the a potential EU legislative initiative. One and would lead to a better understand- application of grounds for refusal, taking shouldeasy task, be very especially careful when because reflecting of the real on into consideration that surrender is the risk of regression in the event of reopen- foreign judicial authorities. rule and refusal the exception. ing negotiations. The challenge is there- ing in the field on how to cooperate with fore to come to a common understanding, Mutual recognition is the cornerstone Before launching an EAW, a check should perhaps in the form of a Memorandum of of the EAW Framework Decision. Mu- be performed on trial readiness and to Understanding signed by the competent tual recognition implies mutual trust. verify if the transfer of the execution of authorities of the Member States and the It’s well known that not all executing the sentence or the transfer of proceed- Commission, which can be implemented authorities apply the same level of mu- ings to the Member State of nationality or at national level or can lead to the use of a tual trust. Belgian judicial authorities residence of the requested person would common manual with binding guidelines. have repeatedly emphasized that this be more expedient. When talking about An alternative might be a horizontal in- concept needs to remain rock solid, choosing between an EAW or MLA re- strument on mutual recognition, although leaving no margin for interpretation, quest, one should not be blind to the fact and as such does not allow courts to that it may take about 45 days to have a this option requires further reflection.

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person surrendered and that it may take tackling the situation of multiple EAW between six months and two years to requests, requiring a coherent inter- have an MLA request for the interroga- pretation of Article 16 of the EAW tion of the same person executed and re- Framework Decision and perhaps turned, with no guarantees regarding the leading to a revision of this article, quality of the interrogation. We will see providing Eurojust with a stronger what the future will bring once the Euro- role in such cases. However, one has pean Investigation Order is operational. to take into account the Commission’s EAW cases registered at Eurojust point of view not to recognize Euro- To tackle what seem to be dispro- just’s decisions as binding, despite portionate EAWs, judicial authorities the possibility offered by Article 85 of should be given the freedom to put the the Treaty on the Functioning of the execution of the EAW and the subse- European Union (TFEU). quent arrest of the requested person temporarily on hold, in order to have - - ally fantastic for practitioners to be Poland made the most requests sult the issuing authority. ableMy final to consult remark a isdatabase that it would on the be con re- sufficient time at our disposal to con crete legal application of the EAW in Last, but not least, the added value all Member States (including jurispru- of Eurojust (also) in the application dence). Eurojust could, if wanted, play of the EAW cannot be emphasized a key role in this matter, collecting and enough. There are numerous cases analysing information provided by the that would not have led to the same National Desks (or by the European Ju- result without the intervention of dicial Network), complementing the re- Italy received the most requests Eurojust. An expansion of Eurojust’s stricted scope of the evaluation reports role is conceivable, for example, when issued by the Commission.’ Source: Eurojust Annual Report 2013

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History of the EAW

From extradition procedure to the EAW Framework Decision upon on the EAW Framework Decision (2006, European Arrest Warrant their accession in 2007. Croatia imple- 2007 and 2011), concerning implemen- mented the EAW Framework Decision tation status in the Member States; the ecognising the need for a faster in January 2014. and simpler method of arrest Evaluations (2009), dedicated to the Rand surrender of requested Success EAWfinal ReportFramework on the 4thDecision; Round theof Mutual 2011 persons, the need to avoid lengthy ex- follow-up to the evaluation reports; and tradition procedures in the Member The EAW has fundamentally changed the European Parliament’s Resolution States, and a guarantee of fundamen- the Area of Freedom, Security and Jus- on the review of the EAW (2014). tal rights for the accused, the Frame- tice. But is the EAW a success? Has it work Decision on the European Arrest met its goal of accelerating surrender Nonetheless, on 27 February 2014, Warrant (EAW Framework Decision) procedures? All of our interviewees in the European Parliament adopted a was approved in 2002 and entered this newsletter would agree, with some Resolution, with recommendations to into force on 1 January 2004 (Council - the Commission, on the review of the Framework Decision 2002/584/JHA, ment, that the EAW has for the most part EAW. For further information on this amended in 2009 by Council Frame- qualifications and room for improve topic, please see the interview with work Decision 2009/299/JHA). Commission’s Implementation Reports Baroness Ludford. succeeded, as further confirmed by the - ed on the basis of the principle of mu- tualThis recognition,instrument, theis founded first to be on adopt trust and direct contact among the judicial authorities of the Member States. Sur- render is facilitated by several factors, among which are: (a) the requested Member State must execute the warrant without judging the substance of the accusation; (b) strict time limits on execution of the EAW avoid the possibility of lengthy pre-trial detention pe- riods; and (c) double criminality as a ground for refusal is limited.

Implementation

Member States were asked by the Eu- ropean Commission to bring their national legislation in line with the EAW Framework Decision, were coun- selled to limit the number of warrants issued for minor offences, and were therefore advised to apply the principle of proportionality.

The EAW Framework Decision has been implemented in all Member to implement the EAW Framework DecisionStates. The were first Belgium, eight Member Denmark, States Fin- land, Ireland, Portugal, Spain, Sweden and the UK. A further sixteen Mem- ber States had implemented the EAW Framework Decision by 1 November 2004. Italy followed in April 2005. © Eurojust Bulgaria and Romania implemented

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Eurojust and cooperation partners

The role of Eurojust Member States request the assistance of Eurojust in accordance with Article 16 he EAW Framework Decision and of the EAW Framework Decision. In this Case example 1 Eurojust have been in existence context, Eurojust applies its own 2011 In a joint investigation team (JIT) Tfor the same period of time. Eu- Guidelines for internal proceedings on the rojust has played a key role in improv- provision of Eurojust’s opinion in case of - ing cooperation in criminal matters be- competing European Arrest Warrants. To concerningtion of seized trafficking property, Eurojust’s in human gain an insight into how Eurojust works beingshelp focused (THB) on and the the judicial confisca de- aspect of this role has been facilitating in this regard, see Guidelines for deciding velopment of the case. The vic- thetween execution Member of States, EAWs. and The a significantsuccess of which jurisdiction should prosecute in the tims of THB located in Member Eurojust AR2003, pages 60-66. State A were arrested and inter- can easily be measured by the number viewed with the help of police Eurojust’s work in the field of the EAW Further insight into the role of Eurojust of cases involving EAWs that it has reg- Member State B in accordance istered between 2007 and 2013: 1 730 in EAW cases is found in Annex II to the officerswith the andprovisions prosecutors of the 1959 from cases. The success of the EAW can be Eurojust AR2004, entitled The legal and and 2000 MLA Conventions, so seen in the number issued by all Mem- practical implications of the Framework that their witness evidence could ber States in 2013 alone: 15 827. Decision on the European Arrest Warrant. be used in the investigations of - both Member States. In this way, The story begins with Article 3(1)(b) cation of obstacles, guidelines for decid- the victims could be interviewed of Council Decision 2002/187/JHA of ingThe onannex competing contains EAWs, sections and on breach identifi of by their fellow countrymen, who had been specially trained to deal 28 February 2002 setting up Eurojust time limits in EAW cases. See Eurojust with vulnerable victims and wit- AR2004, pages 80-88. nesses. The testimonies obtained against serious crime (Eurojust Deci- within the framework of the JIT sion),with awhich view states: to reinforcing the fight In cases involving competing and con- could then be used by both Mem- current EAWs, Eurojust can provide ber States in their investigations. …the objectives of Eurojust shall be: advice leading to a solution regarding transfer of proceedings. The ultimate Within the framework of this JIT, a decision was taken that the pro- decision will be made by the judicial (b) to improve cooperation between ceedings would be transferred to the competent authorities of the authorities of the executing Member Member State B and that EAWs Member States, in particular by facil- State. To avoid a decision overly favour- would be issued by Member itating the execution of international able to one Member State, Eurojust can State B, which would then be ex- mutual legal assistance and the im- organise a coordination meeting as a ecuted in Member State A. The plementation of extradition requests. communication platform to get the na- perpetrators in Member State tional authorities to talk to each other, A were surrendered to Mem- Article 16(2) of the EAW Framework or can consult the involved Member ber State B and were brought to trial, together with their accom- Decision states ‘The executing judicial States, e.g. if two EAWs have been is- plices already arrested in Mem- authority may seek the advice of Euro- sued by two Member States for differ- ber State B. With the support of just (1) when making the choice referred ent offences against the same suspect. Eurojust, which arranged two to in paragraph 1’ (this choice refers to coordination meetings in addi- deciding which EAWs will be executed In short, Eurojust’s unparalleled exper- tion to two Level II meetings, the in the event of multiple requests), and - assessment of the evidence, the Article 17(7) states: fying best practice and offering solutions, transfer of the criminal proceed- thustise helps speeding to prevent up the executionconflicts byof mutualidenti ings and the execution of the EAWs were carried out within legal assistance requests and EAWs. Where in exceptional circumstances the framework of the JIT. a Member State cannot observe the time limits provided for in this Arti- Eurojust can also provide non-binding The JIT activities resulted in cle, it shall inform Eurojust, giving the advice in accordance with Article 17 reasons for the delay. In addition, a of the EAW Framework Decision con- State B. Some additional meas- Member State which has experienced cerning breach of time limits or other a final conviction in Member of property in Member State A repeated delays on the part of another legal problems. ureswere relatingdiscussed to betweenthe confiscation the JIT Member State in the execution of Eu- partners at Eurojust and, as a re- ropean arrest warrants shall inform A common-sense approach to the com- sult, property was successfully the Council with a view to evaluating plicated matter of extradition tells us the implementation of this Frame- that Eurojust is the body best placed work Decision at Member State level. to provide advice on the application of confiscated in Member State A.

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the EAW. Member States may seek Eu- an impartial observer, Eurojust avoids compiled in Council Document 9200/7/12 rojust’s advice in the event of multiple decisions that could be favourable to a REV 7, dated 15 January 2013, including requests, and Eurojust shall be informed particular Member State. grounds for refusal and other obstacles to of delays that are likely to affect the time the operation of the EAW. limit for execution of an EAW. Figures By collecting cases and discussing the is- On a practical level, how does Eurojust In 2013, 221 cases concerning the ex- sues and challenges involved, Eurojust has ecution of EAWs were registered at established a knowledge base that allows: use of the EAW? Let’s say two Member Eurojust. The Polish Desk made the Statesprevent approach and resolve Eurojust conflicts with EAWs in thefor greatest number of requests for help in `` the legal requirements of both the the same person. Eurojust contributes relation to execution of EAWs, with 29 issuing and executing authorities to (representing 13.4 per cent of all EAW examining the request and offering, on cases at Eurojust), followed by the Aus- `` advice to be provided prior to drafting someto the occasions, resolution a non-binding of such conflicts opinion by trian (19), Belgian (17) and Bulgarian EAWsbe clarified on which Member State is best placed (17) Desks. The Italian Desk received `` reporting to be carried out of brea- to execute the EAW and by facilitating the largest number of requests for ex- ches of time limits communication between the request- ecution of EAWs, with 37, followed by `` lines of communication to be esta- ing Member States, thus providing a the Spanish (31) and UK (30) Desks. blished between national authorities `` the fast exchange of information Six such cases were opened at Euro- A questionnaire on the practical opera- between national authorities justplatform in 2013 for and efficient all were communication. successfully tion of the EAW for 2011 was distribut- closed. Eurojust participates in this ed to the Member States by the Council’s The role of Eurojust’s Judicial process as an impartial observer and General Secretariat Working Party on Cooperation Instruments Team bases its opinion on several factors, in- Cooperation in Criminal Matters (Ex- cluding the Member State in which the perts on the European Arrest Warrant) The team, chaired by Mr Pietro Suchan, majority of crimes were committed. As (COPEN). The statistical results were Assistant to the National Member for

Total number of cases involving EAWs registered at Eurojust 2009-2013

2013 221 7 81

2012 256 6 114

2011 260 4 97

2010 281 3 95

2009 255 4 23

Improve execution of EAW Article 16 FD (multiple requests) Article 17 FD (time limit exceeded)

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Execution of EAW cases referred to Eurojust in 2013 by requesting and requested Member State

Coll BE BG CZ DK DE EE IE EL ES FR HR IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK

Requesting Requested

Italy, is one of several teams within Eu- Note regarding the overview of Euro- principle of mutual recognition, and pean case law, constitutional issues and to simplify procedures in this regard has three main roles, to: (1) support recurrent practical problems related to by establishing a system to obtain evi- androjust monitor that focus the implementation on specific issues. of the It the application of the European Arrest dence in criminal cases where there is Eurojust Decision in all matters related Warrant. This document was dissemi- a cross-border dimension. Eurojust will to judicial cooperation instruments; (2) nated to national authorities. organise a strategic seminar on the EIO, promote the compliance of Member The European Investigation Order – a States with the obligations arising from The team is also developing the dis- new perspective in judicial cooperation relevant mutual recognition and judicial cussion on the European Investigation in the EU, in 2015. cooperation instruments, in particular Order (EIO), approved by the Euro- the EAW Framework Decision; and (3) pean Parliament on 7 March (PE-CONS - 122/13), by representing Eurojust at just on relevant mutual recognition and COPEN meetings on this matter. The judicialdefine the cooperation role and added instruments. value of Euro EIO is seen by one of the interviewees in this edition of Eurojust News as ‘com- To carry out its work, the team collects plementary to the European Arrest information on cases and discusses is- Warrant’ and something that ‘will help sues that have arisen with the purpose ease pressure on the EAW.’ How will it - ease this pressure? It will do so by al- ing the most effective solutions to the lowing judicial authorities to far more problemsof agreeing faced. on best Cases practice and issues and find are easily request investigative measures evaluated in accordance with EU legis- and obtain evidence in other Member lation and existing experience. Issues States. The EIO was proposed in April related to EAWs are discussed during 2010 by seven Member States: Bel- regular meetings of the team. In 2013, gium, Bulgaria, Estonia, Spain, Austria, the team provided an update to the Slovenia and Sweden, based on the Mr Pietro Suchan

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Strategic seminar The European Ar- and an instrument of mutual recogni- cases and the recommendations of the rest Warrant?: Which way Forward? Ms Coninsx commented: On 10 and 11 June, Eurojust held a stra- tion that has benefited practitioners. EU’s first Anti-Corruption Report. tegic seminar on the EAW, co-organised In the field of judicial cooperation, I be- Consultative Forum was dedicated to re- with the Greek Presidency. The seminar lieve we can all accept that it is crucial centThe finalEU legislative session ofdevelopments, the meeting includ of the- was combined with a meeting of the Con- to dedicate our attention and efforts on ing the application of Protocol 36 to the sultative Forum of Prosecutors General the hindrances which appear to prevent Treaties, the state of play of the Regula- and Directors of Public Prosecutions of a more efficient use of the European Ar- tions on Eurojust and the establishment of the Member States of the European Un- rest Warrant, the purpose of which is, ion (Consultative Forum) convened by no doubt, to contribute to the facilitation of the mutual efforts against crime Thethe European active role Public of Eurojust Prosecutor’s in enhancing Office. Greece and supported by Eurojust, bring- with a cross-border aspect. judicial cooperation, assisting and pro- ingthe together Office of a thewide Prosecutor range of experts General and of viding support to practitioners through- high-level representatives of national The seminar included four workshops out the European Union in the effective prosecution authorities as well as rep- that focused on central issues in the ex- implementation and application of the resentatives from the EU institutions, ecution of EAWs: (1) scope and content EAW, was clearly demonstrated during including the European Court of Justice. of the EAW Framework Decision; (2) the seminar, and was echoed in the con- grounds for non-recognition and guar- clusions of the workshops. The timing of the seminar was no coin- antees; (3) surrender procedure; and cidence; it was timed to mark 10 years (4) effects of the surrender. Mr Suchan, speaking at the seminar, of the EAW, making it – as pointed out noted that Eurojust’s assistance in EAW by our interviewees – an ideal oppor- During the workshops, the participants cases can be varied and diverse in level tunity to discuss the EAW’s operation. contributed their experience and for- of complexity. After providing several The goal was to encourage judicial mulated conclusions that will lead to case examples to illustrate Eurojust’s practitioners to exchange views on the more practical solutions to improve ju- role, Mr Suchan pointed out that Euro- practical operation and functioning of dicial cooperation and make better use just can typically provide advice and in- of the EAW. The outcome of the four formation on how national courts in the and practical shortcomings and possi- workshops was presented on 11 June Member States proceed in given situa- blethe solutions EAW. Reflections leading to focused progress on in legal the to the Consultative Forum. A discussion tions, ensuring that material on the gen- effective application of EAWs. paper containing a number of ques- eral practice in other EU jurisdictions is tions was circulated to the participants promptly and effectively made available Opening the seminar, Ms Coninsx prior to the meeting to stimulate the for consideration, thus allowing the co- pointed out that the EAW is considered debate. Following the debate, Consul- ordination and execution of requests in an instrument marked with a high de- tative Forum members discussed chal- gree of success and effectiveness in the lenges and best practice in the investi- seminar report will be published as an gation and prosecution of corruption EUa swift document and efficient in autumn manner. of 2014. The EAW fight against serious organised crime Mr Nikos Ornerakis, National Member for Greece, and Ms Michèle Coninsx, President of Eurojust European Judicial Training Network

Baroness Ludford, Professor Weyem- bergh and Professor Mitsilegas, in their interviews in this issue, as well as Ms Coninsx in her remarks at the ECBA Spring Conference, highlighted the added value that training of judges and prosecutors can provide in the use of judicial cooperation instruments such as the EAW. With that goal in mind, Eu- rojust signed a Memorandum of Under- standing (MoU) with the European Judi- cial Training Network (EJTN) in 2008, formalising the exchange programme to familiarise these judges and prosecutors with the tasks, functioning and activities of Eurojust, including the use of the EAW. In addition, Eurojust cooperates with the EJTN within the framework of

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Criminal Justice Project 1 (International Judicial Cooperation in Criminal Matters in Practice, ‘EAW and MLA simulations’). Case example 2 Under this project, several seminars per - year throughout the Member States are held. At these seminars, Eurojust rep- Thebetween French the authorities Netherlands, initiated France a anddrug Albania. trafficking The case OCG athad Eurojust contacts concern in Bel- resentatives contribute to the develop- inggium an and Albanian other countriesorganised along crime the group route (OCG) from trafficking France to Albaniaheroin and (Italy, cocaine Swit- ment of the interactive and practical zerland, Spain and possibly Greece). Requests for cross-border surveillance training and raise awareness of the daily were sent and executed. work of Eurojust. Eurojust hosted three coordination meetings to exchange information, to coordinate the execution of surveillance requests and to discuss possible ne European Judicial Network bis in idem of jurisdiction arose. Eurojust was asked to conduct an analysis of the situa- The Secretariat of the European Judicial tion. As a result issues. of Asthe France analysis, and the Italy two shared jurisdictions two targets, agreed a potential that France conflict was Network (EJN) is hosted by Eurojust. in a better position to prosecute the case, and Italian authorities transferred The EJN is a network of national contact the proceedings to France. points for the facilitation of judicial cooperation in criminal matters. The EJN A common action day was planned in the Netherlands, Belgium, France and Switzerland. These common efforts led the investigators to detect a future il- licit drug transport from the Netherlands to France. assist in the practical implementation ofwebsite the EAW: contains (1) thethree EAW specific Atlas tools, which to In March 2012, a coordination centre was held at Eurojust to ensure helps the judicial authorities identify smooth information exchange during the action day, with analytical support the competent executing authority and also provides basic information on the were arrested and the drugs seized. This day of common action triggered legal requirements in the executing providedsubsequent by lawEuropol. enforcement Individuals actions, involved resulting in the in drug 17 arrests, trafficking several operation house searches in France and the Netherlands, and the seizure of 12 kg of heroin. Member State; (2) the EAW Compendi- um Wizard, which provides assistance The Italian authorities, in close contact with the French and Dutch police, had in drafting an EAW form; and (3) the been targeting the same OCG for approximately one year and launched an op- EAW Library, containing practical infor- eration on Italian territory in May 2012. This operation resulted in the ex- mation on the EAW, including the full ecution of 13 EAWs and the seizure of 15 kg of cocaine and 4 kg of heroin. text of the EAW Framework Decision, information between the competent national authorities, particularly between law, and national legislation. For fur- Thethe investigativeswift and flexible bodies organisation in the involved of the countries. OCG required This intensiveround-the-clock exchanges infor of- mation exchange, over approximately two weeks, was facilitated by Eurojust. therforms, information, notifications, please a handbook, see www.ejn- case crimjust.europa.eu/ejn/.

The active role of Eurojust in enhancing judicial cooperation, assisting and providing support to practitioners throughout the European Union in the effective implementation and application of the EAW was clearly demonstrated during the seminar on the EAW, and was echoed in the conclusions of the workshops

EAWs registered at Eurojust formal requests to provide advice notifications of breach of time limits in execution of EAWs registered at Eurojust

Source: Eurojust Annual Report 2013

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Practical and legal issues

number of practical and legal (3) Differences between legal systems, given its combination of practitioner issues in the execution of EAWs namely in relation to the conditions to experience and language skills. For A be met under domestic law before an example, the choice between the word through its casework. EAW can be issued, have sometimes re- ‘accused’ and the word ‘suspect’ could have been identified by Eurojust sulted in the non-execution of an EAW, have far-reaching consequences for the because under the law of the executing execution of an EAW. Member State, these have not been met (1)The Slowissues communication identified include: between com- in the issuing Member State (e.g. issue - petent authorities. of a person being considered a suspect risdiction. At times, an EAW relates to or an accused is linked to the separation a(5) case Issues in which linked there with is conflicts a parallel of in ju- (2) Differences between legal systems: between investigation and prosecution). vestigation in the executing Member problems related to differences between State or in which the executing Mem- common law and civil law systems. In (4) Poor quality of the translation of ber State initiates an investigation such cases, Eurojust played an important the EAW. Inaccurate translations of against the requested person for the role in assisting the national authorities, EAWs have caused basic problems in same facts, as a result of the receipt of enhancing mutual understanding and understanding. Eurojust has been able providing practical solutions. for the issuing Member State. the EAW. This has caused difficulties to overcome these practical difficulties

Conferences such as this provide a forum for specialised legal practitioners to meet national prosecutors and experts .... and permit a frank exchange of views and information

Spring Conference of the European Criminal Bar Association

n April, Ms Coninsx participated in a In addition to detailing the ways in which be closely followed), trust between legal panel discussion at the ECBA’s Spring Eurojust can assist with issues relating practitioners (training must be given), IConference in Warsaw devoted to the to the use of the EAW, Ms Coninsx out- and the trust of citizens (both victims EAW 10 years after implementation, en- lined a number of important issues and and suspects) (procedural safeguards titled Legal aid – Privilege for criminals or described the challenges ahead. She said must be in place and victims’ rights must essential for fair proceedings?. The con- that the successful application of the be protected). Ms Coninsx pointed out ference attracted speakers from across EAW can only occur with trust on three that a majority of judges and prosecu- Europe. Ms Coninsx’s speech concerned levels: trust between Member States (im- tors do not view the EAW as part of their Eurojust’s role and experiences. plementation in the Member States must knowledge of foreign legal systems and EUeveryday criminal work. justice Difficulties instruments arise is whenlack- ing or misunderstood. Eurojust can help to overcome these obstacles.

Conferences such as this provide a forum for specialised legal practitioners to directly meet national prosecutors and experts in the use of the EAW, and permit a frank exchange of views and information. Ms Coninsx’s speech was published on the ECBA website. See http://www.

10 © shutterstock

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Interviews

aroness Sarah Ludford Member of the European Parliament for London from 1999 - 2014. Baroness Ludford previously worked in White- Bhall, in the European Commission,is a qualified for barrister.Lloyd’s of She London has been and aAmerican member Express,of the House and ofserved Lords as since a local 1997 councillor and was in a the London Borough of Islington. In the European Parliament, Baroness Ludford was a member continuously until 2014 of its Civil Liberties, Justice & Home Affairs Committee (LIBE) and was the UK Liberal Democrat European spokeswoman on justice and human rights. She has had a leading role in the past 15 years in the whole range of the LIBE Committee’s work, from asylum, immigration and visa policy to data protection. She has focused particularly in the last parliamentary term on criminal justice and procedural rights issues, was Rapporteur on the Directive on rights to interpretation and translation and most recently on a report calling for reform of the European Arrest Warrant.

Eurojust News: In your statement to the European Parliament on your proposals for the EAW, you said that the EAW ‘was launched without the support and safeguards necessary to make it strong and sustainable, not least as MEPs were ignored in the legislation.’ Could you outline the support and safeguards you would like to see implemented?

Baroness Ludford: ‘The EAW is a cru-

However, varying criminal justice standardscial weapon and in practices the fight throughout against crime. the EU have led to legitimate criticisms that the EAW needs to be improved. The mutual trust in standards and practices which lies at the heart of the EAW system cannot just be assumed; it must have a solid foundation.

The safeguards my report calls for (particularly for a proportionality check and human rights refusal) will ensure that also fairly, respecting fundamental rights ofthe suspects EAW is orused accused not only persons efficiently wherever but

Thethey findreport’s themselves proposals in the alsoEU. include a call for an effective legal remedy to be available to individuals, not only the right to appeal against execution of the EAW but also compensation for miscarriages of justice. Effective and well-informed EAW proceedings should be facilitated by strengthening training and contact networks of judges, prosecutors and criminal de- Baroness Sarah Ludford fence lawyers. The European Parlia- ment also wants to address the long- standing problem of poor standards You also discussed the incorporation of the clause, and stated that this ‘must be dupli- of detention, including conditions of European Investigation Order’s proportion- cated for the EAW,’ backing up the recom- pre-trial detention in the EU.’ ality check and human rights safeguard mendations in your report. However, other

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As organised crime becomes increasingly sophisticated, reinforcing judicial cooperation in criminal matters is the key to securing an Area of Freedom, Security and Justice and the EAW is a crucial weapon

experts believe that an explicit proportion- in the issuing state seeks to ensure that prison for 15 months before acquittal; ality check and human rights safeguard an EAW is reserved for cases the instru- and a case of extradition to Hungary clause will not make a huge difference in ment is really designed to deal with: it in 2009 in the absence of a decision to practice. For instance, judicial authorities will guide and oblige authorities to re- prosecute, in which the suspect spent from Member States that have an explicit ally consider whether the EAW is nec- four months in prison during which he human rights safeguard clause state that essary, based on all the relevant factors was only interviewed once by the police this ground is used extremely rarely. What and circumstances such as the serious- and tried only in 2012. is your view on such statements? And if such ness of the offence, whether the case an explicit human rights safeguard clause is trial-ready, the impact on the rights The European Parliament placed an were to be included, would you believe that of the requested person and the avail- emphasis on encouraging the use by national judicial authorities are aware of ability of an appropriate, less intrusive the judicial authorities, when appropri- the criteria that they need to take into ac- alternative measure. I believe that the ate, of alternative, less intrusive mutual count to apply this clause correctly? number of incorrectly issued EAWs will recognition instruments to help ensure thereby be reduced. respect for the rights of suspects and ac- ‘I believe that a considerable degree of improvement could in fact be made by An explicit and EU-wide human rights its proper use. I’m very pleased that the enhanced dialogue and cooperation be- safeguard clause in the EAW Frame- Europeancused persons Investigation and confine Order the has EAW been to tween the relevant authorities, which is work Decision will both remind judi- agreed by the EU co-legislators because the reason my report proposes a consul- cial authorities that they have a (joint) allowing police and prosecutors to tation procedure. It also calls on the Com- obligation to ensure that fundamental share evidence and information should mission to establish and make easily ac- rights are guaranteed and do so with a take the strain off the EAW and prevent cessible a database collecting all national - the latter being used as an investigative case law relating to EAW and other mu- sent patchwork in which some Member tool. In addition, the European Supervi- tual recognition proceedings to facilitate Statesconsistent have definition, such a provision replacing domesti the pre- sion Order (bail) should help facilitate the work of practitioners, and the EAW cally such as that of the UK (section 21 the avoidance of unnecessary pre-trial Handbook could also include guidance. of the Extradition Act 2003). The EU detention and premature surrender. I test could usefully introduce, as sug- believe a proportionality check by the But the evidence I have read and heard gested by Advocate General Sharpston issuing state and a consultation proce- – ever since 2001, in seminars and hear- in Radu, a somewhat lower threshold dure for competent authorities in the ings I held in the Parliament such as in issuing and executing Member States October 2013 at which people from a to exchange information, including on range of perspectives spoke, in discus- Youthan mentioned the Strasbourg the EAW “flagrancy” being used test.’ as a sions with Anand Doobay and Professor ‘fishing expedition to interview suspects the EAW to its proper purpose.’ Anne Weyembergh and in their reports and witnesses’. Have you seen evidence trial-readiness, could help to confine for European Added Value Assessment – of this or is it a suspicion that stems What is the added value of the EAW? convince me that an explicit proportion- from the large number of EAWs issued How do you assess Eurojust’s current ality check and human rights safeguard by some countries? How do you believe role in its application? Can you foresee clause could make a real difference to this problem should be addressed? any expansion in the role of Eurojust stop misuse and breach of rights. Obvi- with regard to the issuance and execu- ously, until we have those in place, it is ‘The EAW is intended to be used “for the tion of EAWs? impossible to prove this! purposes of conducting a criminal prosecution” (or post-conviction sentence). I The problem of EAWs being issued for certainly know of cases where the EAW the current challenges of serious cross- minor offences must be remedied as it seems to have been used prematurely border‘We are clearlycrime whenmore effectivewe work in together fighting challenges mutual trust, compromises as a step in the investigation, before the in Europe; as organised crime becomes the good functioning of the system by case is ready for prosecution, let alone increasingly sophisticated, reinforcing leading to unwarranted arrests which for trial, resulting in individuals lan- judicial cooperation in criminal mat- disproportionately interfere with the guishing in pre-trial detention while the ters is the key to securing an Area of rights of requested persons, and be- prosecution prepares its case. Examples Freedom, Security and Justice, and the smirches the reputation of the measure. from the UK (which I know best) are: EAW is a crucial weapon. The average My proposal for a proportionality check a case of pre-trial detention in a Greek time for extradition has decreased from

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one year pre-EAW to around 15 days rofessor Anne Weyembergh holds a Master’s Degree in Public and Admin- with consent and 48 days without. istrative Law and a Master’s Degree in International Law, and completed a PPhD in Law at the Université libre de Bruxelles (ULB). Ms Weyembergh is a Eurojust plays a key role in helping full-time Professor at the ULB’s Institute for European Studies (IEE). Together with to implement EAWs and supporting Serge de Biolley, she founded and coordinates the European Criminal Law Academic competent authorities to improve Network (ECLAN). In addition, she is the coordinator of the IEE-ULB team on Euro- the effectiveness of investigations pean criminal law. We were fortunate to be able to conduct a brief interview with and prosecutions. Its role in facili- Professor Weyembergh during the seminar. tating coordination and cooperation and developing synergies with other agencies such as Europol is crucial in Eurojust News: What would you say are of EAW mechanisms throughout the this endeavour.’ the biggest problems with the EAW? European Union would be more real- istic for the moment, but even this is Are you confident that the proposals Professor Weyembergh: ‘Apart from - you recently put forward in the Euro- the issue of incomplete or unfaithful im- tential EU legislative revision of the pean Parliament will be adopted? plementation of the EAW Framework EAWquite difficultFramework and risky.Decision Indeed, must a pobe Decision by national transposing laws, handled carefully, considering the real ‘My report received impressive which is a problem falling within the ju- risk of regress if we were to reopen the cross-party input and support and risdiction of the Commission, one of the negotiations on the EAW. was adopted by an overwhelming biggest problems with the EAW is the majority in the European Parlia- variable geometry between the various The danger of taking steps backwards ment. The weight of opinion in the EAW systems. There is no single uniform must of course be taken very serious- European Parliament has made it- EAW mechanism but as many as there ly, both practically and symbolically. self felt and will not be ignored with- are transposing laws. Such diversity, That’s why in our research paper for out making a noise, so I believe the - the European Parliament we favoured Commission will need to take note tional procedural systems and different a transversal legislative initiative, which of that and come forward within the nationalwhich reflects sensitivities, the diversity complicates among the na would concern all or most of the mu- next year with proposals that meet tasks of practitioners who have to deal tual recognition instruments. Such a MEPs’ demands. It is certain that this - transversal initiative would present a issue will be taken up by the new ties. Other important issues affecting the double advantage: on the one hand, the European Parliament in the hear- functioningwith all those of laws the andEAW national result fromspecifici the advantage of ensuring more consistency ings and that the nominee for Justice current incompleteness and imbalances among mutual recognition instruments, Commissioner will be pressed on of the EU area of criminal justice. This which is clearly lacking at the moment, this matter in the hearings.’ area is indeed still under construction.’ and, on the other hand, the advantage of lowering the risk of opening Pandora’s After 10 years, can you say that the Is there a political will to legislate uni- Box. Anyway, the legislator should listen EAW has been a success story? Does it formly? carefully to practitioners and take into have a bright future? - ‘To legislate uniformly would mean ties they pinpoint after 10 years of prac- ‘Yes, it is a success, a crucial crime- adopting an EU regulation. The latter ticalconsideration implementation the problems of the EAW.’and difficul does not have to be transposed within cross-border police and judicial co- the national legal orders but is directly You mentioned during your keynote operation.fighting tool Justice which delayed has transformed is justice applicable. It would thus present the speech that when Member States request denied, and the traditional extradi- advantage of “reaching” more uniform- additional information, this suggests a de- tion arrangements were unfair on ity. The text of the TFEU allows the gree of mistrust. Do you think that within victims as well as the public, and development of mutual recognition the EU there will ever be the same levels unsuited to an EU with free move- through regulations. However, after the of trust experienced in the Nordic States? ment of people. But because the EAW entry into force of the Lisbon Treaty, the EU legislator has opted to further ‘Nordic trust is often presented as an mutual recognition, it is crucial that develop mutual recognition via direc- example to follow. However, it is based validis the criticisms cornerstone levelled and against flagship it be of tives, which allow Member States to on a high level of approximation between the Nordic States. The European removed. Once the reforms I have pro- Union is not marked by such a high level posedaddressed are putand intoflaws practice, in its operation we will Cooperationkeep their specificities. in criminal matters is sen- - have a more balanced EU area of sitive from a national sovereignty point ible cooperation culture has developed criminal justice in which the EAW, bol- of view. So the move to real uniform- betweenof approximation. the Nordic A States; smooth it has and a long flex stered by necessary safeguards, will history. The EAW is now only 10 years indeed have a very bright future.’ States. A move towards an approximation old. A better and deeper cooperation ity is quite difficult to accept for Member

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culture has still to develop within the European Union. Such evolution will depend on the strengthening of various aspects pertaining to the EU area of criminal justice, particularly the further development of approximation of legislation and of training.’

Do you see a role for Eurojust with regard to the EU database of decisions relating to the EAW that you mentioned in your speech?

‘When working on the research paper for the European Parliament, we real- the basic materials, i.e. national judicial decisionsized how difficultrelating itto is the to haveEAW accessand the to other mutual recognition instruments. In some Member States, and particularly in those States where the execution of than in others. Better tools are needed to beEAWs able is to decentralised, better assess itthe is functioningmore difficult of EU cooperation. Easier access to foreign decisions related to mutual recognition should be ensured to all the competent authorities and defence lawyers.

So, we proposed that the European Union should fund the establishment of an EU national case law database concerning the EAW and other mutual recognition instruments. This would Professor Anne Weyembergh and common problems and thus ease anfacilitate autonomous the identification and complete of recurring evaluation of cooperation; it would provide useful information and a source of in- A better and deeper cooperation culture has still to spiration for all practitioners; promote develop within the European Union a real dialogue between the competent authorities; and help bring national practices closer together. The collected data should of course be regularly up- The interactions between the different dated and thoroughly analysed. Such in its activities. Eurojust deals with a aspects and instruments of the EU area analysis could, for instance, concern largethe basis number of the of difficulties EAWs and encountered has a real of criminal justice must be taken into the grounds for refusal used by nation- overall vision of the main and recurring account. But some solutions or part of al authorities. A better and objective problems. Its added value in this regard the solutions are too recent, are not yet assessment of such use is indeed cru- is thus essential.’ transposed or are still under negotiation. cial to highlight the main obstacles and The best example of this consists in the Do you agree with Commissioner Reding directives relating to procedural guar- practical application. The implementa- that a revision of the EAW is premature? antees, which are really complementary tiondifficulties of such encountered project could in be the entrusted EAW’s to mutual recognition instruments, but to a group of independent academic ex- ‘Assessing the EAW on a complete basis which are not yet in force in all Mem- perts throughout the European Union. ber States; far from it. This explains why some experts we interviewed consider However, it should be complemented by beand considered identifying within problems an overalland difficulties picture. the revision of the EAW Framework De- regular evaluation reports from Eurojust, Therelated EU toinstruments it was a difficult of criminal task. Itjustice must cision as being premature. And I under- which could issue recommendations on must indeed be considered as a whole. stand this point of view.’

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rofessor Valsamis Mitsilegas is Head of the Department of Law and Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary University of London. Previously, he served as legal adviser to the House of PLords European Union Committee, and is a consultant to national parliaments, EU institutions such as the LIBE and CRIM Committees of the European Parliament, and international organisations, NGOs, think tanks and academic networks. Professor Mitsilegas is an expert in EU law and transnational organised crime, corruption and money laundering. He is a widely published author of works on European criminal law, immigration and asylum and security and counter-terrorism law. Professor Mitsile- gas is also a Coordinator of the European Criminal Law Academic Network (ECLAN).

Eurojust News: Has the EAW been a success story? Which major difficulties from a legal and practical point of view do you see in the application of the EAW and how should they be addressed? Do you consider that the proposals recently put forward in the European Parliament adequately address its shortcomings?

Professor Mitsilegas: ‘The EAW Frame- work Decision has been the most suc- - an criminal law in terms of its reach into domesticcessful instrument criminal injustice the field systems of Europe and its implementation by Member States. A key challenge in the operation of the EAW Framework Decision is the attempt to reconcile the speedy and quasi- automatic recognition and execution of national judicial decisions with the need to respect national legal diversity and fundamental rights.

The proposals put forward by the Euro- pean Parliament highlight a number of the key challenges facing the operation of the EAW. The way forward in any law reform or guidance related to the EAW is to recognize fully and explicitly failure to respect fundamental rights as a mandatory ground of non-execution of an EAW and to place greater emphasis on the implementation of EU standards on the rights of suspects and defendants, including detention conditions, in Member States.’

Do you consider mutual trust to have improved since the introduction of the EAW?

‘The operation of the EAW Framework

Decision has certainly prompted judi- Professor Valsamis Mitsilegas cial authorities responsible to recognize

A key challenge in the operation of the EAW Framework Decision is the attempt to reconcile the speedy and quasi-automatic recognition and execution of national judicial decisions with the need to respect national legal diversity and fundamental rights

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and execute EAWs to consider care- proportionality concerns related to the operationalisation in the legal sys- fully requests from their counterparts overuse of the EAW by national authori- tems of other Member States and by in other Member States and to attempt facilitating communication channels conduct falling within the EAW and the and training of the national judiciary. the EAW while recognising the diver- penaltyties would thresholds be to define triggering the scope the opera of the- Eurojust can play a key role in creat- sityto achieve of legal efficiency systems in in the other operation Member of tion of the EAW Framework Decision in ing an authoritative picture of the use States. A key factor enhancing mutual and key legal issues arising from the trust in this context has been the intro- implementation of the EAW in Member duction of judicial training and practi- Cana more you specific explain way.’why some Member States States. Subject to the establishment of cal measures including regular meet- issue thousands of EAWs each year, while clear legal rules taking into account the ings between judges.’ others issue less than one hundred? rights of the defence, Eurojust also has a key role to play in advising national You wrote in an article in 2012 entitled ‘Geographical, mobility and population authorities when examining EAWs in The Limits of Mutual Trust in Europe’s factors may serve to provide answers Area of Freedom, Security and Justice to this question. Differences in national that ‘the introduction of a proportional- legal systems with regard to choices and Thethe contextpartial abolitionof conflicts of theof jurisdiction.’ ‘double crim- ity check…may serve as a limit to the au- obligations related to prosecution may inality’ requirement and the surrender tomaticity of the European Arrest War- also explain such discrepancies.’ of nationals were described as ‘contro- rant System.’ Has it since proved to be a versial’ features of the EAW Framework limiting factor? What is the added value of the EAW? Decision when this instrument was How do you assess Eurojust’s current adopted. Do you believe that after ten ‘The need to adhere to the principle of role in its application? Can you foresee years of EAW practice they are still con- proportionality in the operation of the any expansion in the role of Eurojust sidered controversial? EAW has been highlighted by national with regard to the EAW? governments and national courts alike, ‘The partial abolition of the dual criminali- and the principle can currently be found ‘The EAW has served to speed up and ty requirement has not proven to be a par- in both EU criminal law (the European simplify judicial cooperation in crimi- ticular challenge in the operation of the Investigation Order) and national im- nal matters in the EU. By constituting a EAW Framework Decision. The key chal- plementing law (the recent legislation well-implemented, emblematic instru- lenge in this context has been and remains amending the 2003 Extradition Act in ment of European criminal law, it has to ensure the full compliance of the EAW the UK). While one view of proportion- also helped to promote further Europe- with fundamental rights. The adoption ality grants primary responsibility for and full implementation of EU standards adherence to this principle to the au- in a series of important constitutional on the rights of the defendant and the en- thorities of the issuing Member States, rulingsan integration by the Courtin the offield Justice by resulting and na- hanced on-the-ground monitoring of na- automaticity in the execution of the EAW tional courts, as well as in the adoption tional criminal justice systems as regards will be limited primarily if breach of pro- the position of individuals affected by portionality is treated as a ground to re- the rights of suspects and defendants. EAWs (including in particular the length fuse to execute an EAW, in particular in Eurojustfor the first can timeplay a of key EU role standards in the op on- of trial and pre-trial proceedings and de- cases where such breach would essen- eration of the EAW system, mainly by tention as well as detention conditions) tially constitute a breach of fundamental focusing on educating the judicial au- are all key factors to ensure full compli- rights. A more direct way of addressing thorities who are responsible for its ance with fundamental rights.’

udge Lars Bay Larsen has been a Judge at the ECJ since January 2006. He was awarded degrees in political science (1976)

Jthen Associate Professor (1991-96) in Family Law at the University of Copenhagen; Head of Section at the Advokatsamfund (Danishand law Bar (1983) Association) at the University(1985-86); of Head Copenhagen; of Section was at the an OfficialMinistry at of the Justice Ministry (1986-91); of Justice called (1983-85); to the BarLecturer (1991); (1984-91), Head of Division (1991-95); Head of the Police Department (1995-99) and Head of the Law Department at the Ministry of Justice (2000- 03); Representative of the Kingdom of Denmark on the K-4 Committee (1995-2000), the Schengen Central Group (1996-98) and the Europol Management Board (1998-2000); and a Judge at the Højesteret (Supreme Court) (2003-06).

Eurojust News: In your article, Some liaments, prosecutors, defence lawyers, of the rushing through of EAW legisla- national judges and we at the ECJ in tion following 11 September 2001. Has in the Area of Freedom, Security and Luxembourg have since had to live with this made your time at the ECJ – when JusticeReflections, you stated on Mutual that ‘National Recognition Par- the inevitably less than perfect outcome’ dealing with questions relating to the

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Certainly, it makes life at the Court very interesting at times, as the Court normally cannot escape such delegation of legislative power, since we, in a preliminary ruling case, must provide an answer to the national judge that will allow him or her to decide the pending national case. But I would like to add that it is not a “legislative role” that we, at the Court, strive for. It is more a duty that we – maybe a little bit reluctantly – feel obliged to perform, when we are called upon to do so.

jurisprudence on the EAW, in particu- larI believe in the case this law is well on Articles reflected 4(6) in and our 5(3) (see, notably, Cases C-66/08, Ko- zlowski, C-123/08, Wolzenburg, and C-42/11, Lopes Da Silva Jorge).’

Has the EAW been a success story? Which major difficulties from a legal and practical point of view do you see in the application of the EAW and how should they be addressed? Do you consider that the proposals recently put forward in the European Parliament adequately address its shortcomings?

‘I actually believe that the EAW has been quite a success and a rather con- crete example of how we are “united in diversity”.

Having said that, I believe that the EAW has also, to some extent, been a vic- tim of its own success, notably given the fact that a very high number of issued EAWs come from a single Member State, and that many of these EAWs do not concern serious crime. Judge Lars Bay Larsen A further general point is perhaps that past experience with the EAW has EAW – more interesting and challeng- biguity” when drafting new legisla- demonstrated that mutual recogni- ing? Has the ECJ been able to clarify tion, it inevitably implies a de facto tion, both politically and judicially, is issues which the legislator has left un- delegation of legislative competence easier to handle if combined with at clear, and to what extent (or on what from the legislators to the Court in least some form of approximation of points) do you believe further legisla- Luxembourg. From time to time, this national legislation. tive developments/adjustments are is perhaps unavoidable, also given the still needed? - But, naturally, it is for the EU legislator(s) – and not for me as a European judge – Judge Larsen: ‘Whenever the EU Idifficulties know quite in wellachieving from amy qualified time in ma the to draft and adopt any new European legislators in Brussels – because of K-4jority Committee in the Council, (now difficulties known as CATS). which urgency, political disagreement or Nevertheless, it is not ideal, when for any other reason – apply what is choices which are essentially of a po- Dolegislation you consider in this mutual field.’ trust to have im- often referred to as “constructive am- litical nature are pressed upon judges. proved since the introduction of the EAW?

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Past experience with the EAW has demonstrated that mutual recognition, both politically and judicially, is easier to handle if combined with at least some form of approximation of national legislation

‘Yes. I still regard the launch of the valid, that the requesting Member State criminality vis-à-vis selected (Member) initiative on mutual recognition based respects its obligations vis-à-vis funda- States, but expanding such schemes to a on mutual trust in Turku and the sub- mental rights. But this is a presumption Union of 28+ Member States is still po- sequent decisions to this effect at the which may be rebutted or may simply litically quite another thing.’ European Council in Tampere in 1999 evaporate due to the circumstances.’ as important steps with a view to im- As you know, there has been a lot of dis- proving judicial cooperation in penal What is the added value of the EAW? cussion and debate about the lack of an matters within the European Union. How do you assess Eurojust’s current explicit human rights refusal ground. role in its application? Can you foresee In her Opinion under the Radu judge- to really implement these ideas. any expansion in the role of Eurojust ment, Advocate-General Sharpston ar- And the EAW was the first instrument with regard to the EAW? gued that the ECJ should not necessarily At the same time, you have to be aware adopt the same severe test as developed of a tidal wave which has rolled in the ‘As I was a little bit involved in the set- by the European Court of Human opposite direction, demanding that fun- ting up of Eurojust quite a few years Rights. With reference to that Opinion, damental rights should systematically ago now, it is a real pleasure for me to do you believe ECJ case law will develop be controlled, not only in the issuing see how well it has developed as an in- in line with the criteria that have been Member State but also in the requested developed in the case law of the Euro- Member State. Taken at face value, such has had in developing European coop- pean Court of Human Rights in extradi- demands threaten to roll back Europe- eration.stitution, Still, and from the positivetime to time, influence I come it tion cases, or that the ECJ will develop an judicial cooperation to a 1950s level across one or another pending case at its own criteria? – and then, in fact, it would no longer be the Court in Luxembourg where I can- a tidal wave, but a tsunami. not help asking myself why Member ‘The Radu case was heard by the States apparently failed to cooperate Grand Chamber and Advocate General Obviously, I am not, with these re- Sharpston had to allow for the even- marks, questioning the jurisprudence existence of Europol, Eurojust and the tuality that the Grand Chamber would of both the Strasbourg Court and my judicialin an efficient networks manner that –we in spitealso estabof the- choose to make some more general own Court developed on the Dublin re- lished maybe 15 years ago. Europe has observations on the protection of fun- gime in the event of apparent and sys- come a long way, but we can do better!’ damental rights in cases on the EAW. temic violations of fundamental rights of asylum seekers returned from other The partial abolition of the ‘double crim- As you can see from the judgement, Member States to Greece (ECtHR Case inality’ requirement and the surrender the Court chose not to do so and went no. 30696/09, MSS vs. Greece and Bel- of nationals were described as ‘contro- pretty straight to the heart of the mat- gium, Case C-411/10, N.S., and Case versial’ features of the EAW Framework ter “that the executing judicial authori- C-4/11, Puid), case law that I have no Decision when this instrument was ties cannot refuse to execute a European doubt will equally apply in the other adopted. Do you believe that after ten arrest warrant issued for the purposes Areas of Freedom, Security and Justice. years of EAW practice, they are still con- of conducting a criminal prosecution on sidered controversial? the ground that the requested person Certainly, the requested Member State was not heard in the issuing Member should not have the right to “turn a ‘The jurisprudence on Articles 4(6) and State before that arrest warrant was is- blind eye” to manifest systemic viola- 5(3) to which I referred earlier – and sued.” And the Court refrained – in my tions of fundamental rights in the re- the very different ways of implement- view wisely – from developing general questing Member State. All I am say- ing these provisions of the EAW in na- principles on fundamental rights in ing is that fear of falling into that ditch tional law – probably to a certain extent an obiter dictum in a case where there should not lead us to scrap the Princi- - was no need to do so. ple of Mutual Trust and tumble head on ter of these issues. into the ditch on the other side of the reflect the politically sensitive charac We will then probably have to wait – road. For the EU legislator as well as for Several Member States (including the perhaps impatiently – for one or sev- the courts (European as well as nation- Nordic States) have for many more years eral cases where such principles or al ones), there is a balance to be struck had a more selective practice of extra- guidelines are needed to know their based on the presumption, generally diting own nationals without double material content.’

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Case example 3

France opened a case in July 2012 concerning an OCG involved in illegal immigration. The OCG was located in France, Belgium and the UK and had links to Greece and Turkey as well as to the Netherlands. It had a highly sophisticated and complex logistical organisation, with the location of the base of operations shifting from France to Belgium.

The OCG made illegal Kurdish immigrants pay approximately EUR 2 000 per person via cash or bank transfer to the UK. Subsequently, the illegal immigrants were collected from parking areas in Belgium and France and put on trucks that transported them to ferries sailing from Calais to the UK. This operation was repeated each night. The OCG is believed to be responsible for attempting to smuggle between 20 and 30 illegal immigrants into the UK every day, with an estimate of 10 people successfully smuggled daily, accounting for approximately 4 000 illegal immigrants per year.

Eurojust supported the successful management of the case by holding two coordination meetings. These meetings were followed by the signing of a JIT agreement between France and Belgium in October 2012. The UK joined this JIT in February 2013. The JIT was co-funded by Eurojust via the JIT Funding Project. In August 2013, a coordination centre was set up at Eurojust and run by Eurojust’s French, Belgian and UK Desks. Europol supported the case by deploying a mobile office to France for on- the-spot intelligence analysis.

Successful actions were conducted by police authorities in France, Belgium and the UK and led to the arrest of 36 persons, the issuance of two competing EAWs, and to 45 prem- ises being searched. The OCG was dismantled through these joint actions. In this illegal im-

provide non-binding written counsel regard- migrationing which case,EAW Eurojust’shad priority. specific Factors task to was con to- sider in such a situation of competing EAWs in each involved Member State are: (a) the number of persons involved; (b) the severity of the crime(s); and (c) whether most of the crimes were committed in one place. The ultimate decision will be taken by the judicial © shutterstock authorities of the executing Member State.

Eurojust is a European Union body established in 2002 to stimulate and improve the coordination of investigations and prosecutions among the competent judicial authorities of Member States when they deal with serious cross-border crime. Each Member State seconds a judge, prosecutor or police officer to Eurojust, which is supported by its admin- istration. In certain circumstances, Eurojust can also assist investigations and prosecutions involving a Member State and a State outside the European Union, or involving a Member State and the Community.

Eurojust supports Member States by:

ÒÒ coordinating cross-border investigations and prosecutions in partnership with judges, prosecutors and investigators from Member States, and helping resolve conflicts of jurisdiction; ÒÒ facilitating the execution of EU legal instruments designed to improve cross-border criminal justice, such as the European Arrest Warrant; ÒÒ requesting Member States to take certain actions, such as setting up joint investigation teams, or accepting that one is better placed than another to investigate or prosecute; and ÒÒ exercising certain powers through the national representatives at Eurojust, such as © Eurojust the authorisation of controlled deliveries.

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