European arrest warrant replaces extradition between EU Member States

A European Arrest Warrant, valid throughout the European Union has replaced extradition procedures between Member States of the enlarged Europe. Such a warrant may be issued by a national issuing judicial authority if the person whose return is sought is accused of an offence for which the maximum period of the penalty is at least a year in prison, or if he or she has been sentenced to a prison term of at least four months. A decision by the judicial authority of a member state to require the arrest and return of a person should therefore be executed as quickly and as easily as possible in the other Member States of the European Union. The European Arrest Warrant means faster and simpler surrender procedures and no more political involvement. It also means that Member States can no longer refuse to surrender to another Member State their own citizens who have committed a serious crime, or who are suspected of having committed such a crime in another EU country, on the ground that they are nationals. Simplifying and improving the surrendering procedure between EU Member States was made possible by a high level of mutual trust and cooperation between countries who share the same highly demanding conception of the rule of law.

The Member States of the European Union were required to introduce legislation to bring the European arrest warrant (EAW) into force by 1 January 2004. On 13 June 2002, the EU Council of ministers adopted a framework decision on the European arrest warrant and the surrender procedures between Member States of the European Union.

An EAW may be issued by a national court if the person whose return is sought is accused of an offence for which the penalty is at least over a year in prison or if he or she has been sentenced to a prison term of at least four months. Its purpose is to replace lengthy extradition procedures with a new and efficient way of bringing back suspected criminals who have absconded abroad and for people convicted of a serious crime who have fled the country, in order to forcibly transfer them from one Member State to another for conducting a criminal prosecution or executing a custodial sentence or detention order. The EAW enables such people to be returned within a reasonable time for their trial to be completed or for them to be put in prison to serve their sentence.

The EAW is based on the principle of mutual recognition of judicial decisions. This means that a decision by the judicial authority of a member state to require the arrest and return of a person should be recognized and executed as quickly and as easily as possible in the other Member States.

What exactly is a European arrest warrant?

The European arrest warrant introduces some novelties compared to the former extradition procedures:

Faster procedures: The State in which the person is arrested has to return him/her to the State where the EAW was issued within a maximum period of 90 days of the arrest. If the person gives its consent to the surrender, the decision shall be taken within 10 days

Simpler procedures: The dual criminality principle - which means that both the country requesting extradition and the country that should arrest and return the alleged criminal, recognize and accept that what he or she is alleged to have done, is a crime - is abolished for 32 serious categories of offences. These include participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in arms, ammunition and explosives, corruption, fraud including fraud pertaining to the financial interest of the European Union, money laundering and counterfeiting of money including the euro. European arrest warrants issued in respect of crimes or alleged crimes on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least 3 years' imprisonment in the Member State that has issued the warrant. For offences which are not in the list or beyond the 3 years' threshold, the dual criminality principle still applies.

No political involvement: In extradition procedures, the final decision on whether to surrender the person or not, is a political decision. The EAW procedure abolished the political stage of extradition. This means that the execution of these warrants is simply a judicial process under the supervision of the national judicial authority which is, inter alia, responsible for ensuring the respect of fundamental rights.

Surrender of nationals: EU countries can no longer refuse to surrender their own nationals. The EAW is based on the principle that EU citizens shall be responsible for their acts before national courts across the EU. This means that it will not be possible in principle for a Member State to refuse to surrender one of its citizens who has committed a crime in another EU state on the ground that he or she is a national. On the other hand, it will be possible for a Member State, while surrendering this person, to ask for their return on its territory to serve its sentence in order to facilitate future reintegration.

Guarantees: The EAW ensures a good balance between efficiency and strict guarantees that the arrested person's fundamental rights are respected. In implementing the framework decision on the EAW, Member States and national courts have to respect the provisions of the European Convention on Human Rights and to ensure that it is respected. Anyone arrested under an EAW may have a lawyer, and if necessary an interpreter, as provided by the law of the country where he or she has been arrested. If judgement was given in his absence against anyone later arrested under an EAW, he has to be retried in the country requiring his return (see infra).

Grounds for refusal: The surrender of the person can be refused on several grounds (see Arts. 3 and 4 of the Framework Decision) among which:

• the "ne bis in idem" or double jeopardy principle. This means that the person will not be returned to the country that issued the arrest warrant if he or she has already been tried for the same offence.
• amnesty: A Member State can refuse to return a person if an amnesty covers the offence in its national legislation.
• statutory limitation: A Member State can refuse to return a person if the offence is statute barred according to its law (which means that the time limit has been passed and that it is too late under that country's law to prosecute the person).
• the age of the person: A Member State can also refuse to return a person who is a minor and has not reached the age of criminal responsibility under its national laws.

It is also possible for a Member State to execute directly the sentence decided in another Member State instead of surrendering the person to that Member State.

Life sentence: Where someone arrested under an EAW may be sentenced to life imprisonment, the state executing the EAW may insist, as a condition of executing the arrest warrant, that if sentenced to life, the accused person will have a right to have its personal situation periodically reconsidered.

Death penalty: There is no mention of the death penalty as the death penalty has been abolished in the European Union.

Relations with third countries: The European Arrest Warrant only applies within the territory of the EU (15 Member States, and 25 as from 1 May 2004). Relations with third countries are still governed by extradition rules. If a person has been surrendered to another EU country according to the EAW and is afterward demanded by a third country, the Member State which authorized the surrender in the first place shall be consulted.

How was the framework decision adopted?

The Commission proposed a Framework decision on 19 September 2001 (COM(2001) 522 final/2) (PDF File 224 KB) on which a political agreement was reached on 11 December 2001 . The Framework decision was formally adopted in June 2002. The new system replaces the traditional extradition system between the Member States and is to be valid for the entire territory of the European Union once it will be transposed in all Member States' legislation. The deadline to introduce legislation to bring the EAW into force was 1 January 2004.
The European arrest warrant implements a decision taken in October 1999 by the European Council - the heads of state or heads of government of all 15 EU countries - at Tampere, Finland, to improve judicial co-operation in the European Union and, in particular, to abolish formal extradition procedures for persons "who are fleeing from justice after having been finally sentenced". Its effectiveness depends on EU Member States trusting each other's legal systems and accepting and recognizing the decisions of each other's courts. Its objective - which is agreed by all EU states - is to ensure that criminals cannot escape justice anywhere in the EU.

Had efforts already been made to simplify extradition procedures between Member States?

Yes. Extradition is currently ruled by the European Convention on extradition from 1957 which was negotiated in the framework of the Council of Europe. In the context of the European Union, two Conventions were elaborated in the 1990s:

1. the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union (1995 EU Extradition Convention),

2. the Convention of 27 September 1996 relating to extradition between the Member States of the European Union (1996 EU Extradition Convention) and

3. Extradition is also ruled by some provisions of the Convention of 19 June 1990 implementing the Schengen Agreement (Schengen Implementation Convention).

The aim of both EU Extradition Conventions and the Schengen Implementation Convention was to supplement and facilitate earlier extradition conventions, such as the 1957 European Convention on Extradition (Council of Europe), that were applicable between the Member States.

The 1995 and 1996 EU Extradition Conventions have not entered into force as not all Member States have ratified them yet. A Member State has, however, the possibility to make a declaration that it will apply the conventions in relation to other Member States that have made the same kind of declaration. Both EU Extradition Conventions are therefore applicable between almost all Member States.

The 1995 EU Extradition Convention requires agreement (consent) from the person to be extradited. If consent has been given the simplified procedure applies. The Schengen Implementation Convention also contains rules on consented extradition. The Framework Decision on the EAW has incorporated these rules into a single legal framework on the surrender procedures.

The 1996 EU Extradition Convention contains several innovations, such as the abolition of two important impediments to extradition; political offences and own nationals. The 1996 Convention provides thus that no offence may be regarded by the requested Member State as a political offence, as an offence connected with a political offence or an offence inspired by political motives and that extradition may not be refused on the ground that the person claimed is a national of the requested Member State. However, there is a possibility for the Member States to make a reservation in relation to the articles on political offences and own nationals, which has been widely used. This possibility has disappeared in the Framework Decision on the EAW. As mentioned above EU countries will no longer refuse to surrender their own nationals.

Who does what?

The European Commission shares the right to initiate proposals with Member States in the area of justice and home affairs. Concerned with the overall strategy, the Commission is responsible for revising policies and actions and implementing them. The Commission issued a proposal for a European arrest warrant on 2001 September 19, in order to replace extradition procedures by a more efficient instrument based on mutual recognition (see above). The Commission has also evaluated the implementation of the Framework decision in a report on the 23.2.2005.

European judicial cooperation in criminal matters is also dealt with by international organisations like the Council of Europe and the United Nations, as well as being included in work related to the enlargement of the EU and to the transatlantic dialogue with the United States and Canada.

How has the EAW been implemented by Member States ?

The Commission has evaluated the implementation of the Framework decision in a report issued on the 23.2.2005 (COM(2005)63 (PDF File 139 KB) and SEC(2005)267)(PDF File 236 KB). Despite some initial delays, the EAW is now operational in most of the cases planned and its impact is positive, in terms of depoliticisation, efficiency, and speed in the procedure for surrendering people who are sought, while fundamental rights are respected throughout.

The effectiveness of the EAW can be gauged provisionally from the 2 603 warrants issued, the 653 persons arrested and the 104 persons surrendered up to September 2004. The surrender of nationals, a major innovation in the Framework Decision, is now a fact, though most Member States have chosen to apply the condition that in the case of their nationals the sentence should be executed on their territory.

Since the Framework Decision came into operation, the average time taken to execute a warrant is provisionally estimated to have fallen from more than nine months to 43 days. This does not include these frequent cases where the person consents to surrender, for which the average time taken is 13 days.

The improvements due to the arrest warrant also benefit the persons concerned, who in practice now consent to their surrender in more than half the cases reported. The Framework Decision is more precise than previous provisions, as regards for instance the ne bis in idem principle, the right to the assistance of a lawyer or the right to the deduction from the term of the sentence of the period of detention served. Furthermore, as a result of the speed with which it is executed, the arrest warrant contributes to better observance of the "reasonable time limit" principle.

This overall success should not make one lose sight of the effort that is still required by some Member States to comply fully with the Framework Decision. The report highlights the difficulties that remain in that respect. A few Member States considered that, with regard to their nationals, they should reintroduce a systematic check on double criminality or convert their sentences. Noticeable in some Member States is the introduction of supplementary grounds for refusal, which are contrary to the Framework Decision, such as political reasons, reasons of national security or those involving examination of the merits of a case. Moreover, there are cases in certain Member States where the decision-making powers conferred on executive bodies are not in line with the Framework Decision. Lastly, by ruling out the warrant's application to acts that occurred before a given date, a few Member States did not comply either with the Framework Decision. The extradition requests which they continue to present therefore risk being rejected by the other Member States.

The Commission considers this first evaluation as provisional and accordingly reserves the right to present proposals for amending the Framework Decision in the light of further experience.