European Arrest Warrant
Encyclopedia
The European Arrest Warrant (EAW) is an arrest warrant
valid throughout all member states
of the European Union
(EU). Once issued by a member state, it requires the receiving member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial
or complete a detention
period. Extradition
must take place within 90 days of arrest or within 10 days if the arrested person consents to surrender.
An EAW can only be issued for the purposes of conducting a criminal prosecution (not merely an investigation), or enforcing a custodial sentence
. It can only be issued for offences carrying a maximum penalty of 12 months or more. Where sentence has already been passed an EAW can only be issued if the prison term to be enforced is at least four months long.
The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised the previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary
. Since 2004 the use of the EAW has steadily risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3000 in 2004 to 13,500 in 2008.
The resulting European Arrest Warrant legislation came into force on 1 January 2004 in eight member states, namely Belgium
, Denmark
, Finland
, Ireland
, Portugal
, Spain
, Sweden
, and the United Kingdom
. By 1 November 2004 all member states had implemented the legislation except Italy
, which did so on 22 April 2005.
The European Commission
evaluated the implementation of the European Arrest Warrant in a report issued in February 2005. The report concluded that the legislation was adopted successfully overall although there were differences in the way each member state implemented the Framework Decision.
Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to be 43 days (as opposed to more than nine months under the old system of extradition). This does not include cases where the person consents to surrender, for which the average time taken is 13 days.
, which in 2008 issued 4,829 EAWs, approximately 40% of all EAWs issued that year. In 2008, 515 people were extradited from the UK under the EAW system.
and Interpol
.
Once arrested, the person must be informed of the EAW and its contents. They must also be informed that they have the right to consent to surrender and the right to legal advice
and an interpreter. If they do not consent to surrender they will face a hearing, where a judge will decide whether any of the legal bars to extradition exist. These legal bars include:
If one of these legal bars applies, the judge must discharge
the arrested person. If none of these legal bars apply, the judge must order the extradition of the arrested person. There must be an opportunity for both parties to appeal
the decision. Extradition must take place within 90 days of arrest or within ten days if the arrested person consents to surrender.
principle. This means that, for certain specified offences (such as fraud and money laundering), EU members may be obliged to extradite individuals even if the offense in question does not constitute a criminal offense in the extraditing country.
, one of the suspects in the 21 July 2005 London bombings, back to Britain from Italy. EAWs were also issued by Italian prosecutor Guido Salvini
in 2005 against twenty-two CIA agents accused of the kidnapping of Hassan Mustafa Osama Nasr
(Imam Rapito affair
).
On 1 October 2008, Frederick Toben was detained at London
’s Heathrow Airport under a European Arrest Warrant issued by the German authorities for allegedly publishing "anti-Semitic and/or revisionist" material.
On 24 February 2011 a EAW was upheld after a hearing at Belmarsh Magistrates Court in respect of the proposed extradition of Julian Assange
.
suggested in 2007 that it would be appropriate to have a discussion at EU level on the
principle of proportionality
which is outset in article 5 of the Treaty establishing the European Community and how to take this principle into consideration by judicial authorities when issuing a European arrest warrant.
EAWs have been issued for minor offences such as possession of 0.45 grams of cannabis; theft of two car tires; driving a car under the influence of alcohol, where the limit was not significantly exceeded (0.81 mg/l) and the theft of a piglet. In the UK, persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens (Romania
), unintentionally receiving a stolen mobile phone (Poland), and theft of £20 worth of petrol (Czech Republic
).
At the other extreme, the EAW has failed in some cases. The Irish Supreme Court refused to extradite an Irish citizen to Hungary
who was alleged to have killed two children through negligent driving. While the Irish Court never questioned the facts of the case or the fairness or outcome of the Hungarian trial, it decided that the person did not technically "flee" from Hungary, only "failed to return," having left the country with the consent of the Hungarian authorities; therefore, the legal requirements for extradition under an EAW had not been established. However, the requirement that the person have "fled" the requesting jurisdiction has since been removed from Irish law, and a new warrant has been issued by the Hungarian authorities.
, the London-based human rights charity, claims to have highlighted a number of cases which demonstrate that the European Arrest Warrant system is causing serious injustice and jeopardizing the right to a fair trial. In particular
Controversial cases include:
wants a fair system of extradition within Europe and argues that the current system must be improved so it delivers rather than undermines justice. As a result, Fair Trials International calls for the following changes to be made to the European Arrest Warrant system:
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
valid throughout all member states
Member State of the European Union
A member state of the European Union is a state that is party to treaties of the European Union and has thereby undertaken the privileges and obligations that EU membership entails. Unlike membership of an international organisation, being an EU member state places a country under binding laws in...
of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
(EU). Once issued by a member state, it requires the receiving member state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
or complete a detention
Detention (imprisonment)
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
period. Extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
must take place within 90 days of arrest or within 10 days if the arrested person consents to surrender.
An EAW can only be issued for the purposes of conducting a criminal prosecution (not merely an investigation), or enforcing a custodial sentence
Custodial sentence
A custodial sentence is a judicial sentence, imposing a punishment consisting of mandatory custody of the convict, either in prison or in some other closed therapeutic and/or educational institution, such as a reformatory, psychiatry or drug detoxification...
. It can only be issued for offences carrying a maximum penalty of 12 months or more. Where sentence has already been passed an EAW can only be issued if the prison term to be enforced is at least four months long.
The introduction of the EAW system was intended to increase the speed and ease of extradition throughout EU countries by removing the political and administrative phases of decision-making which had characterised the previous system of extradition in Europe, and converting the process into a system run entirely by the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. Since 2004 the use of the EAW has steadily risen. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3000 in 2004 to 13,500 in 2008.
Implementation
Agreement in principle on the introduction of the EAW was reached by EU member states at the Laeken Summit in December 2001 and the Framework Decision adopted on 13 June 2002. and entered into force on 7 August 2003, with a deadline for final implementation by member states of 31 December 2003.The resulting European Arrest Warrant legislation came into force on 1 January 2004 in eight member states, namely Belgium
Belgium
Belgium , officially the Kingdom of Belgium, is a federal state in Western Europe. It is a founding member of the European Union and hosts the EU's headquarters, and those of several other major international organisations such as NATO.Belgium is also a member of, or affiliated to, many...
, Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
, Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
, Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. By 1 November 2004 all member states had implemented the legislation except Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, which did so on 22 April 2005.
The European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
evaluated the implementation of the European Arrest Warrant in a report issued in February 2005. The report concluded that the legislation was adopted successfully overall although there were differences in the way each member state implemented the Framework Decision.
Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to be 43 days (as opposed to more than nine months under the old system of extradition). This does not include cases where the person consents to surrender, for which the average time taken is 13 days.
Usage
The first reported use of the EAW was in January 2004 when a Swedish suspect was arrested in Spain and transferred back to Sweden. Member state country evaluation reports suggest that the number of EAWs issued has increased from approximately 3,000 in 2004 to 13,500 in 2008. Much of this increase has been driven by the large number of EAWs being issued by PolandPoland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
, which in 2008 issued 4,829 EAWs, approximately 40% of all EAWs issued that year. In 2008, 515 people were extradited from the UK under the EAW system.
Procedure
A valid European Arrest Warrant may only be issued by the competent judicial authority in the issuing member state. In the England and Wales, this authority is the "appropriate judge" as defined in section 149 of the Extradition Act 2003. That means a Justice of the Peace, District Judge (Magistrates Courts) or a judge entitled to exercise the jurisdiction of the Crown Court. Section 149 also states that in Scotland the "appropriate judge" is a sheriff and in Northern Ireland a resident magistrate or Justice of the Peace. The issuing state must complete a form stating the nature of the offence and giving a short description of the circumstances surrounding the offence, details of the person sought and the applicable penalty. This form is then sent to the relevant receiving state if the issuing state knows the location of the person sought. If the issuing state does not know, they will distribute the EAW to all member states via SIRENESirene
Sirene/ Sirenje or known as "white brine sirene" .Salads: Shopska salad with tomatoes, bell peppers, cucumbers, onions and sirene. Ovcharska salad with the above mentioned vegetables, cheese, ham, boiled eggs and olives. Tomatoes with sirene is a traditional light salad during the summer.Eggs:...
and Interpol
Interpol
Interpol, whose full name is the International Criminal Police Organization – INTERPOL, is an organization facilitating international police cooperation...
.
Once arrested, the person must be informed of the EAW and its contents. They must also be informed that they have the right to consent to surrender and the right to legal advice
Legal advice
In the common law, legal advice is the giving of a formal opinion regarding the substance or procedure of the law by an officer of the court , ordinarily in exchange for financial or other tangible compensation...
and an interpreter. If they do not consent to surrender they will face a hearing, where a judge will decide whether any of the legal bars to extradition exist. These legal bars include:
- the arrested person has already been convicted or acquitted of the same offense or an offense relating to the same facts as those described in the EAW;
- extraneous considerations (e.g. a risk that the person will be prosecuted or prejudiced at trial due to race, religion or political opinions);
- passage of time (extradition would be unjust or oppressive given the time elapsed);
- the person’s age is below the legal age of criminal responsibility; or
- the physical or mental condition of the person makes it unjust or oppressive to extradite.
If one of these legal bars applies, the judge must discharge
Discharge
Discharge in the context to expel or to "let go" may refer to:* A military discharge, issued when a member of the armed forces is released from service* Termination of employment, the end of an employee's duration with an employer...
the arrested person. If none of these legal bars apply, the judge must order the extradition of the arrested person. There must be an opportunity for both parties to appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
the decision. Extradition must take place within 90 days of arrest or within ten days if the arrested person consents to surrender.
Double criminality principle
The EAW partly recognizes the double criminalityDouble criminality
Double criminality is a crime punished in both the country where a suspect is being held and a country asking for the suspect to be handed over or transferred to stand trial....
principle. This means that, for certain specified offences (such as fraud and money laundering), EU members may be obliged to extradite individuals even if the offense in question does not constitute a criminal offense in the extraditing country.
High profile cases
In July 2005 an EAW was executed to allow the extradition of Osman HussainOsman Hussain
Osman Hussain was found guilty of having placed an explosive at the Shepherd's Bush tube station during the failed 21 July 2005 London bombings...
, one of the suspects in the 21 July 2005 London bombings, back to Britain from Italy. EAWs were also issued by Italian prosecutor Guido Salvini
Guido Salvini
Guido Salvini is an Italian judge, based in Milan. He issued European arrest warrants in 2005 against approximatively 20 CIA agents accused of having taken part in the abduction of Abu Omar, the Egyptian cleric in Milan in 2003. The case is known in Italy as the Imam Rapito affair...
in 2005 against twenty-two CIA agents accused of the kidnapping of Hassan Mustafa Osama Nasr
Hassan Mustafa Osama Nasr
Hassan Mustafa Osama Nasr , also known as Abu Omar, is an Egyptian cleric. In 2003 he was living in Milan, Italy, from where he was kidnapped and allegedly later tortured in Egypt. This "Imam rapito affair" prompted a series of investigations in Italy, culminating in the criminal convictions of...
(Imam Rapito affair
Imam Rapito affair
The Abu Omar Case refers to the abduction and transfer to Egypt of the Imam of Milan Hassan Mustafa Osama Nasr, also known as Abu Omar...
).
On 1 October 2008, Frederick Toben was detained at London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
’s Heathrow Airport under a European Arrest Warrant issued by the German authorities for allegedly publishing "anti-Semitic and/or revisionist" material.
On 24 February 2011 a EAW was upheld after a hearing at Belmarsh Magistrates Court in respect of the proposed extradition of Julian Assange
Julian Assange
Julian Paul Assange is an Australian publisher, journalist, writer, computer programmer and Internet activist. He is the editor in chief of WikiLeaks, a whistleblower website and conduit for worldwide news leaks with the stated purpose of creating open governments.WikiLeaks has published material...
.
Controversy
Since its implementation in 2004, the EAW system has been criticised for inappropriate use. Following a report by an internal working party, the Presidency of the Council of the European UnionCouncil of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
suggested in 2007 that it would be appropriate to have a discussion at EU level on the
principle of proportionality
Proportionality
Proportionality may refer to:*Proportionality , the relationship of two variables whose ratio is constant*Proportionality , A legal principle under municipal law in which the punishment of a certain crime should be in proportion to the severity of the crime itself, and under international law an...
which is outset in article 5 of the Treaty establishing the European Community and how to take this principle into consideration by judicial authorities when issuing a European arrest warrant.
EAWs have been issued for minor offences such as possession of 0.45 grams of cannabis; theft of two car tires; driving a car under the influence of alcohol, where the limit was not significantly exceeded (0.81 mg/l) and the theft of a piglet. In the UK, persons arrested under an EAW have been extradited for minor offences such as the stealing of ten chickens (Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
), unintentionally receiving a stolen mobile phone (Poland), and theft of £20 worth of petrol (Czech Republic
Czech Republic
The Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest....
).
At the other extreme, the EAW has failed in some cases. The Irish Supreme Court refused to extradite an Irish citizen to Hungary
Hungary
Hungary , officially the Republic of Hungary , is a landlocked country in Central Europe. It is situated in the Carpathian Basin and is bordered by Slovakia to the north, Ukraine and Romania to the east, Serbia and Croatia to the south, Slovenia to the southwest and Austria to the west. The...
who was alleged to have killed two children through negligent driving. While the Irish Court never questioned the facts of the case or the fairness or outcome of the Hungarian trial, it decided that the person did not technically "flee" from Hungary, only "failed to return," having left the country with the consent of the Hungarian authorities; therefore, the legal requirements for extradition under an EAW had not been established. However, the requirement that the person have "fled" the requesting jurisdiction has since been removed from Irish law, and a new warrant has been issued by the Hungarian authorities.
Right to a fair trial
Fair Trials InternationalFair Trials International
Fair Trials International is a UK-registered non-governmental organization which works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own....
, the London-based human rights charity, claims to have highlighted a number of cases which demonstrate that the European Arrest Warrant system is causing serious injustice and jeopardizing the right to a fair trial. In particular
- Warrants have been issued many years after an alleged offence was committed.
- Once warrants have been issued there is no effective way of removing them, even after extradition has been refused.
- They have been used to send people to another EU member state to serve a prison sentence resulting from an unfair trial.
- Warrants have been used to force a person to face trial when the charges are based on evidence obtained by police brutality.
- Sometimes people surrendered under an Arrest Warrant have to spend months or even years in detention before they can appear in court to establish their innocence.
Controversial cases include:
- Calle JonssonCalle JonssonCalle Jonsson is a Swedish citizen born in Långträsk, Piteå who was arrested in July 2001 on the Greek island of Kos, accused of attempted murder. His case was one of Sweden's most known and reported criminal cases...
- Liam CampbellLiam CampbellLiam Campbell is an Irish republican from Dundalk, County Louth, Ireland.His brother Sean died in December 1975, when a landmine he was preparing for an attack on the British Army exploded prematurely. His other brother Peter served 14 years in prison for Provisional Irish Republican Army offences...
- Klaas Carel FaberKlaas Carel FaberKlaas Carel Faber , is a convicted Dutch-German war criminal. He is the son of Pieter Faber and Carolina Josephine Henriëtte Bakker, and the brother of Pieter Johan Faber, who was executed for war crimes in 1948....
- Hamdi Adus Isaac
- Rafik KhalifaRafik KhalifaAbdelmoumene Rafik Khalifa is an Algerian businessman living in London. He was condemned in Algeria to a life sentence, charged of criminal association, corruption, abuse of trust, and forgery...
- Michèle RenoufMichele RenoufMichèle Suzanne, Lady Renouf , is an Australian-born advertising model, now a British national, and a lifelong international television commercials actress with a thirty year membership of British Actors Equity....
- Gerald Fredrick TöbenGerald Fredrick TöbenGerald Fredrick Töben is a German-born Australian citizen and founder and former director of the Adelaide Institute. He is the author of numerous works on education, political science and history, although he is best known for his Holocaust denial. Töben claims he cannot deny that which never...
- Richard TomlinsonRichard TomlinsonRichard Tomlinson is a New Zealand-born British former MI6 officer who was imprisoned during 1997 for violating the Official Secrets Act 1989 by giving the synopsis of a proposed book detailing his career in the Secret Intelligence Service to an Australian publisher...
- Helena Wolińska-BrusHelena Wolinska-BrusLt. Col. Helena Wolińska-Brus born Fajga Mindla Danielak, was a military prosecutor in Poland with the rank of lieutenant-colonel , involved in Stalinist regime show trials of the 1950s. She has been implicated in the arrest and execution of many Polish anti-Nazi resistance fighters including key...
- Julian AssangeJulian AssangeJulian Paul Assange is an Australian publisher, journalist, writer, computer programmer and Internet activist. He is the editor in chief of WikiLeaks, a whistleblower website and conduit for worldwide news leaks with the stated purpose of creating open governments.WikiLeaks has published material...
Suggested improvements
Fair Trials InternationalFair Trials International
Fair Trials International is a UK-registered non-governmental organization which works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own....
wants a fair system of extradition within Europe and argues that the current system must be improved so it delivers rather than undermines justice. As a result, Fair Trials International calls for the following changes to be made to the European Arrest Warrant system:
- Warrants should not be issued for minor offences where the effect of extradition is itself disproportionate to the alleged crime.
- Courts should use their powers to refuse extradition where it would breach basic rights and warrants should not be issued years after an alleged offence.
- There needs to be a clearer system for removing Warrants – if one court decides extradition would be unjust that decision should be respected across the EU.
- Courts in the arresting country should be able to examine the evidence and should have the power to refuse extradition if they determine there is insufficient evidence.
- EU states should refuse to extradite individuals for actions that are not criminalized under their own laws.
- There must be legal aid, for those who need it, in both the country requesting the extradition and the country where the person is arrested.
See also
- Area of freedom, security and justiceArea of freedom, security and justiceThe area of freedom, security and justice is a collection of European Union policies designed to ensure security, rights and free movement within the EU. As internal borders have been removed within the EU, cross border police cooperation had to increase to counter cross border crime, and thus...
- European Investigation OrderEuropean Investigation OrderIn April 2010, a group of seven Member States has put forward a proposal for a Directive of the European Parliament and the Council regarding the European Investigation Order in criminal matters , which would replace the existing legal framework applicable to the gathering and transfer of evidence...
External links
- European Commission: European Arrest Warrant
- Schorkopf, Frank. European Arrest Warrant, Max Planck Encyclopedia of Public International Law
- T.M. C Asser Instituut: European Arrest Warrant Project
- European Criminal Bar Association: European Arrest Warrant
- UK Crown Prosecution Service: Legal Guidance on the European Arrest Warrant
- UK Home Office
- UK Serious Organised Crime Agency
- Interpol
- Europol
- HM Court Service
- Fair Trials International