European Arrest Warrants
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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 fun- damental 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 EUROJUST News 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 ex- tradition proceedings, namely the Non- the EAW system, although one should Inquiry Rule. To paraphrase an Ameri- keepand influence in mind thatfurther the Commissiondevelopments 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 veryespecially 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. 2 EUROJUST News 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).