The European Arrest Warrant: a Blueprint for International Cooperation in Criminal Matters in Other Regions?

The European Arrest Warrant: A Blueprint for International Cooperation in Criminal Matters in Other Regions?

Harmen van der Wilt*

1 Introduction

On 13 June 2002, the Council of Ministers of the European Union adopted the Framework Decision on the European Arrest Warrant and the Surrender Proce- dures between Member States (“Framework Decision”).1 The establishment of this instrument can only be understood against the backdrop of the lifting of inner frontiers within Europe, a process that started with the creation of the Schengen Area in 1985 and gradually extended, involving other states, concur- rent with the expansion of the European Union. Obviously, the intention of this measure was to facilitate the free movement of persons within “an area of freedom, security and justice”2 but it had its flipside as well. Within the realm of criminal law enforcement, the abolition of customs checks was conducive to an inversion of the natural order (to put it with a sense of drama): criminal offenders could henceforth freely roam in this paradise of golden opportuni- ties, whereas law enforcement officials were the inmates of their own states. This inconvenient situation was partially alleviated by art 41 of the Schengen Convention which allowed officers of one of the contracting parties to enter the territory of another party in pursuit of a person caught in the act of commit- ting a crime, without the prior authorisation of the latter state.3 However, the pursuing officers had no right to apprehend the fugitive, let alone be allowed to take him to their home country. Custody over the offender for the purpose of criminal proceedings could only be accomplished by means of cumber- some extradition proceedings which, in the words of John Spencer, were “slow,

* Professor of International Criminal Law, University of Amsterdam. 1 Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States [2002] ojl 190/1 (“Framework Decision”). 2 Compare art 3(2) of the Consolidated Version of the Treaty on the European Union [2012] OJ C 326, 1. 3 Convention of 19 June 1990, applying the Schengen Agreement of 14 June 1985 between the Gov- ernments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders, opened for signature 19 June 1990, 30 ilm 84 (entered into force 1 September 1993).

62 Wilt

costly and uncertain”.4 In other words: extradition had to be adapted to mod- ern times. The path was paved by the European Council’s endorsement of the principle of “mutual recognition” as the “cornerstone of judicial co-operation in both civil and criminal matters within the Union” during the summit of the Eu- ropean Council at Tampere, Finland, in October 1999.5 The wording of the conclusions prefigures the establishment of the European Arrest Warrant (“eaw”):

With respect to criminal matters, the European Council … considers that the formal extradition procedure should be abolished among the Mem- ber States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 of the Treaty on the European Union. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of a fair trial.6

And indeed, the 2002 Framework Decision was the first fruit of the concept of mutual recognition. The aim of this contribution is to shed some light on the legal nature of the eaw, how the system works out in practice and to explore whether (parts of) it can be transplanted to the context of international cooperation in criminal matters in other regions, like, for instance, Oceania. To that purpose, I will first give a bird’s eye view of the objectives that the Framework Decision seeks to accomplish and how they have materialised in the envisaged procedure on the mutual surrender of suspects and convicts between member states of the European Union (Section 2). In Section 3, I will address three topics that, in my view, cause the most controversy in the execution of eaws and frequently come up before the (Dutch) Chamber for International Cooperation in legal matters of the Amsterdam District Court (hereafter “irc”, according to the Dutch acronym).7 Then I will discuss who may qualify as a “resident of the

4 John R. Spencer, “The European Arrest Warrant” (2004) 6 Cambridge Yearbook of European Legal Studies, 202. 5 European Union: Council of the European Union, “Presidency Conclusions”, Tampere Eu- ropean Council, 15–16 October 1999 (1999), (15/16 October 1999) s 33 . 6 Ibid s 35. 7 I would like to acknowledge that, as a part-time judge in the irc, I have some experience with the assessment of eaws. It should be stressed that all opinions are expressed in my personal capacity as a scholar in international criminal law and do not necessarily reflect the view of the irc.